Terms and Conditions of Sale – Transmax Hardware and Third Party Products
- Application of conditions
- Price, quantity and description
- Delivery and acceptance
- Risk and property
- Personal property security
- Transmax Product Warranty – FPs and RSCs
- Third Party Software and Hardware Warranty
- Return process
- Limitation of liability
- Intellectual property rights
- Confidentiality and Transmax's property
- Force majeure events
- References to certain general terms
- These Conditions apply to and are incorporated into the Contract and apply to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, including any terms or conditions contained in or referred to in the Buyer's Order.
- No addition to, variation of, exclusion or attempted exclusion of any of these Conditions will be binding on Transmax unless in writing and signed by a duly authorised representative of Transmax.
- The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Order will only be deemed to be accepted when Transmax issues a written acceptance of the Order or Transmax delivers the Goods to the Buyer (whichever occurs earlier), at which point the Contract will come into existence.
- A quotation for the Goods provided by Transmax will not constitute an offer. A quotation will only be valid for a period of 30 business days from its date of issue, unless otherwise stated on the quotation.
- Transmax reserves the right to charge a non-refundable deposit payable on acceptance of the Order.
- No Order which has been accepted by Transmax may be cancelled by the Buyer, except with the agreement in writing of Transmax and provided that the Buyer indemnifies Transmax in full against all loss, costs, damages, charges and expenses incurred by Transmax as a result of cancellation.
- All prices will be as stated in Transmax's quotation or in Transmax’s acceptance of the Order.
- All quotations or Orders will include shipping and GST, unless specified otherwise.
- The price for the Goods is based on the rate prevailing at the date of Transmax's quotation or Transmax’s acceptance of the Order. Transmax may, by giving notice to the Buyer at any time up to 7 business days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
- any factor beyond Transmax's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered;
- any delay caused by any instructions of the Buyer or failure of the Buyer to give Transmax adequate or accurate information or instructions.
- The quantity and description of the Goods will be as set out in Transmax's acceptance of the Order or quotation.
- All samples, drawings, descriptive matter, specifications and advertising issued by Transmax, and any descriptions or illustrations contained in Transmax’s catalogues, websites or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
- Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of the Order, invoice or other document or information issued by Transmax will be subject to correction without any liability on the part of Transmax.
- Transmax reserves the right (but does not assume the obligation) to make any changes in the specification of the Goods which are required to conform with any applicable legislation or, where the Goods are to be supplied to the Buyer's specification, which do not materially affect their quality or performance.
- Transmax’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Goods.
- Transmax will use its reasonable endeavours to deliver the Goods on the date or dates specified in Transmax's quotation or Transmax’s acceptance of the Order, but any such date is approximate only. If no dates are so specified, delivery will be within a reasonable time of acceptance of the Order.
- Delivery will be made during normal business hours (excluding public holidays). Transmax may levy additional charges for any deliveries made outside such hours at the Buyer's request.
- The Buyer will be responsible (at the Buyer's cost) for preparing the Delivery Location for the delivery of the Goods and for the provision of all necessary access and facilities reasonably required to deliver and install the Goods.
- Transmax may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment will be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
- Delivery of the Goods will be completed on the Goods' arrival at the Delivery Location.
- Time is not of the essence as to the delivery of the Goods and Transmax is not in any circumstances liable for any delay in delivery, however caused.
- The Buyer will be deemed to have accepted the Goods when the Buyer has had 15 days to inspect them after delivery and has not exercised in writing its right of rejection in accordance with clause 9 (Return process).
- Transmax will be responsible for any damage, shortage or loss in transit, provided that the Buyer notifies it to Transmax within 3 days of Delivery.
- Any remedy under this clause will be limited, at the option of Transmax, to the replacement or repair of any Goods which are proven to have been lost or damaged in transit via the RMA process.
- Transmax may invoice the Buyer for the Goods on or at any time after the completion of delivery. In certain circumstances, Transmax reserves the right to invoice and require payment in advance of delivery.
- The Buyer will pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment will be made to the bank account stated on the Invoice.
- If the Buyer fails to make payment in full on the due date, the whole of the balance of the price of the Goods then outstanding will become immediately due and payable and, without prejudice to any other right or remedy available to Transmax, Transmax will be entitled to:
- terminate the Contract or suspend any further deliveries of Goods (whether ordered under the same contract or not) to the Buyer;
- suspend all further manufacture, delivery, installation or warranty service until payment has been made in full, and;
- charge interest on the amount outstanding from the due date to the date of receipt by Transmax (whether or not after judgment), at the annual rate of 4% per annum above the 60 day Bank Bill Swap Reference Rate last published on or before the due date for payment in The Australian Financial Review (or if that rate has not been published, another rate to be agreed by the parties), accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
- All sums payable to Transmax under the Contract will become due immediately on its termination, despite any other provision of the Contract.
- Transmax may, without prejudice to any other rights it may have, set off any liability of the Buyer to Transmax against any liability of Transmax to the Buyer.
- The Goods will be at the risk of Transmax until delivery to the Buyer at the Delivery Location.
- Title of the Goods will pass to the Buyer on the later of completion of delivery (including without limitation off-loading), or when Transmax has received in full in cleared funds all sums due to it in respect of the Goods.
- Until title of the Goods has passed to the Buyer under clause 5 (b), the Buyer will hold the Goods on a fiduciary basis as Transmax's bailee; store the Goods in satisfactory conditions and separately from all the Buyer's other goods or that of a third party, so that it remains readily identifiable as Transmax's property; not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and keep the Goods insured for its full price against all risks with a reputable insurer and hold the proceeds of such insurance on trust for Transmax.
- The Buyer's right to possession of the Goods before title has passed to it will terminate immediately if any of the circumstances set out in clause 14 (Termination) arise or if the Buyer encumbers or in any way charges the Goods, or if the Buyer fails to make any payment to Transmax on the due date.
- The Buyer grants Transmax, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or where the Buyer's right to possession has terminated, to remove them. All costs incurred by Transmax in repossessing the Goods will be borne by the Buyer.
- On termination of the Contract for any reason, Transmax's (not the Buyer's) rights in this clause 5 will remain in effect.
- If Transmax determines that the Contract (or a transaction in connection with it) is or contains a security interest for the purposes of the PPSA, the Buyer agrees to do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which Transmax asks and considers necessary for the purposes of:
- ensuring that the security interest is enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective; or
- enabling the Company to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by the Company; or
- enabling the Company to exercise rights in connection with the security interest.
- The Buyer agrees not to create any security interest or lien over any Transmax’s Personal Property.
- Transmax warrants to the Buyer that on delivery, and for a period from the date of delivery (“Warranty Period”), the Goods will:
- conform in all material respects with their description and any applicable specification; and
- will be free from defects in material and workmanship.
- The Warranty Period on all goods sold by Transmax is 12 months from date of delivery, unless otherwise specified in the Transmax quotation, invoice or acceptance of the Order. If the Buyer discovers during the Warranty Period that some or all of the Goods do not comply with the warranty set out in clause 7 (a), the parties will follow the process in clause 9 (Return process) below.
- If it is established to Transmax's reasonable satisfaction that the Goods do not comply with the warranty set out in clause 7 (a), Transmax will at its option (subject to the remainder of this clause 7) repair or replace the defective Goods, or refund the price of the defective Goods in full.
- Repaired or replaced Goods are warranted for 90 days from the delivery date, or for the remainder of the original Goods’ Warranty Period, whichever is longer.
- Transmax will not be liable for Goods' failure to comply with the warranty set out in clause 7 in any of the following events:
- the Buyer makes any further use of such Goods after giving notice in accordance with clause 9 (Return process) (c);
- the defect arises because the Buyer failed to follow Transmax's oral or written specifications or instructions, including as to the storage, commissioning, installation, use and maintenance of the Goods (or if there are none, good trade practice regarding the same);
- the Buyer alters or repairs the Goods without the written consent of Transmax, or the Goods are subjected to any technical attention by any person other than Transmax's authorised representatives;
- the defect arises as a result of damage caused by the Customer, abnormal storage or working conditions, or improper use of the Goods or use outside its normal application.
- For any liability, warranty or guarantee that cannot lawfully be excluded, but can be limited, Transmax’s liability is limited to Transmax’s choice of replacing the Goods, supplying equivalent goods, repairing the Goods, or paying the cost of replacing or repairing the Goods or acquiring similar goods.
- Except as provided in this clause 7, Transmax will have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 7 (a).
All third party hardware supplied by Transmax is provided under the third parties manufacturer’s warranty. Transmax cannot provide any additional warranty in relation to these sales. Transmax will pass on to you all relevant information and warranty provided to us by the relevant manufacturer of the hardware.
Your use, rights and obligations in respect of third party software is governed by its applicable End User License Agreement (“EULA”), unless it is varied by agreement between the parties to that EULA. You agree to execute and be bound by the terms of the third party software owner’s EULA. You accept the third party software owner’s warranty in relation to the third party software. Transmax do not provide any warranty in relation to third party software.
Goods come with guarantees that cannot be excluded under 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 or damage. The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure;
To claim this warranty, the Customer must inform Transmax (via the RMA process) within the warranty time period specified by the hardware manufacturer / third party owner. Transmax will assist the Customer with claiming the warranty from the third party manufacturer or owner.
The third party manufacturer’s warranty will provide details as to who will bear the expense of claiming the warranty and (if applicable) how the customer can claim expenses incurred in making the claim. The benefits to the consumer given by the warranty are in addition to other rights and remedies of the consumer under a law in relation to the goods or services to which the warranty relates.
You accept the relevant third party warranties in relation to integration, compatibility or interoperability of products with other hardware and software. Transmax do not provide any warranty in relation to the integration, compatibility or interoperability of hardware or software from third parties.
Assistance with hardware, third party maintenance contract and third party software functionality Issues
Any issues or problems with any hardware, third party maintenance contract or third party software functionality including, but not limited to, warranty claims, may be resolved between you and the relevant manufacturer directly, subject to the terms of the third party manufacturer’s warranty or maintenance provider or EULA, as the case may be. Transmax where possible will provide incidental and reasonable assistance to you during this process. Where you request assistance of us outside of the warranty claims process, we reserve the right (and you agree to accept this reservation) to charge you directly for such intervention, on a time and materials basis.
Exclusion of all other warranties
To the extent permitted by law, and except as set out in these conditions: Transmax;
- provides the Goods to you on an “AS IS” basis;
- excludes all warranties and conditions, express, implied or statutory (including all implied warranties of merchantability, fitness for a particular purpose, lack of viruses, uninterrupted or error free operation, accuracy or completeness of responses or results, lack of workmanlike effort or non-infringement) regarding the goods provided to you; and
- limits the remedies available for a breach of any warranty given to you to the lesser of and to the extent that such breach of warranty is capable of remedy by employing commercially reasonable efforts (as determined by us acting reasonably and in good faith), the cost of repairing or replacing those goods; or paying the cost of having those goods repaired or replaced.
- Goods can only be returned by the Buyer if they do not comply with the warranty set out in clause 7 (Warranty).
- If the Buyer wishes to return the Goods, the Buyer must give notice in writing to Transmax stating the reason.
- The return of Goods is not automatic and can only be effected by following the process set out in this clause.
- The Customer must use the RMA Returns and Repair Process for the return of Goods.
- The following provisions set out the entire financial liability of Transmax (including without limitation any liability for the acts or omissions of its employees, agents and subcontractors) to the Buyer in respect of:
- any breach of the Contract howsoever arising; and
- any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising out of or in connection with the Contract.
- All warranties, conditions and other terms implied by law are excluded from the Contract to the fullest extent permitted by law.
- Nothing in these conditions excludes or limits the liability of Transmax for death or personal injury caused by Transmax's negligence or any liability that cannot by law be limited or excluded.
- Subject to clause (c), Transmax will under no circumstances be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract and Transmax’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), statute, or otherwise, will in no circumstances exceed the price of the Goods.
- The Buyer acknowledges that all Intellectual Property Rights used by or subsisting in the Goods are and will remain the sole property of Transmax or (as the case may be) the relevant third party rights owner.
- Transmax will retain the property and copyright in all documents supplied to the Buyer in connection with the Contract and it is a condition of such supply that the contents of such documents will not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of Transmax.
- The Buyer hereby accepts a non-exclusive, non-transferable licence to use the Software on the following conditions:
- the Buyer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement or for normal operation of the Goods), reproduce, translate, adapt, vary or modify the Software, nor communicate it to any third party, without Transmax's prior written consent;
- the Buyer shall not use the Software on any equipment other than the Goods, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides;
- such licence shall be terminable by the Buyer on 28 days’ written notice;
- such licence shall be terminable by Transmax on 28 days' written notice if the continued use or possession of the Software by the Buyer infringes the developer's or a third party's rights, or Transmax is compelled to do so by law, or if the Buyer has failed to comply with any term of the Contract; and
- on or before the expiry of this licence, the Buyer shall return to Transmax all copies of the Software in its possession.
- Transmax's Intellectual Property Rights in and relating to the Goods will remain the exclusive property of Transmax, and the Buyer will not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.
In relation to the Software (if any):
- the Buyer acknowledges that it is buying only the media on which the Software is recorded and the accompanying user manuals;
- nothing contained in these conditions will be construed as an assignment of any Intellectual Property Rights in the Software or user manuals; and
- Where the Goods are supplied for export from Australia, the provisions of this clause 12 shall override any other provision of these Conditions.
- The Buyer will be responsible for complying with any legislation governing
- the importation of the Goods into the country of destination; and
- the export of the Goods, and shall be responsible for the payment of any duties on the Goods.
- Unless otherwise agreed in writing between the Buyer and Transmax, the Goods will be delivered free on board the air or sea port of shipment.
- The Buyer shall pay the price for the Goods in Australian dollars.
- The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply in any respect to the Contract
- The Buyer will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Buyer by Transmax or its agents, and any other confidential information concerning Transmax's business or its products which the Buyer may obtain.
- All materials, equipment and tools, drawings, specifications and data supplied by Transmax to the Buyer (if any) will at all times be and remain the exclusive property of Transmax, but will be held by the Buyer in safe custody at its own risk and maintained and kept in good condition by the Buyer until returned to Transmax, and will not be disposed of or used other than in accordance with Transmax's written instructions or authorisation.
- This clause 13 will survive termination of the Contract, however arising.
Without prejudice to any other right or remedy available to Transmax, Transmax may terminate the Contract or suspend any further deliveries under the Contract without liability to the Buyer and, if the Goods have been delivered but not paid for, the price will become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, if the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business, is an insolvent under administration or insolvent (each as defined in the Corporations Act), is in liquidation, in provisional liquidation, under administration or wound up, or any event occurs, or proceeding is taken, with respect to the Buyer that has an effect equivalent or similar to any of the events mentioned in this clause.
Neither party will be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
- Transmax may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Transmax.
- If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract will not be affected.
- If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision will apply with the minimum modification necessary to make it legal, valid and enforceable.
- A waiver of any right or remedy under the Contract is only effective if given in writing and will not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that or any other right or remedy.
- The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Transmax which is not set out in the Contract.
- The Contract is governed by the law in force in Queensland. Each party submits to the non-exclusive jurisdiction of the courts of Queensland.
These meanings apply unless the contrary intention appears:
Buyer means the person, firm or company who purchases Goods from Transmax.
Conditions means the terms and conditions set out in this document.
Contract means the Buyer's Order and Transmax's acceptance of that Order in accordance with clause 1 (Application of Conditions) (c).
Corporations Act means the Corporations Act 2001 (Cwlth), as amended from time to time.
Delivery Location means the location set out in the Order or such other location as the parties may agree.
Goods means the goods (or any part of them) to be purchased by the Buyer from Transmax as set out in the Contract.
GST means the tax imposed by the GST Act and the related imposition Acts of the Commonwealth.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth), as amended from time to time.
Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including without limitation all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. Order means the Buyer's order for the Goods, as set out in the Buyer's purchase order form, the Buyer's written acceptance of Transmax's quotation, or overleaf, as the case may be.
Order means the Buyer's order for the Goods, as set out in the Buyer's purchase order form, the Buyer's written acceptance of Transmax's quotation, or overleaf, as the case may be.
PPSA means the Personal Property Securities Act 2009 (Cwlth).
RMA (Return Merchandise Authorisation) is the process to return a product in order to receive a refund or replacement for a device. The Buyer must provide completed RMA form and return the Goods to Transmax. A Return Authority number (RA Number) will be assigned to the request and provided to the Customer for tracking purposes.
The RMA form to be completed by the Customer is included in the RMA Process document.
Software means any operating system installed on the Goods as delivered.
Transmax’s Personal Property means all personal property of Transmax which is the subject of a security interest granted in favour of Transmax under the Contract.
Unless the contrary intention appears, a reference in this agreement to:
- (variation or replacement) a document (including this agreement) includes any variation or replacement of it;
- (references to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- (singular includes plural) the singular includes the plural and vice versa;
- (person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any government agency;
- (executors, administrators, successors) a particular person includes a reference to the person’s executors, administrators, successors and substitutes (including, persons taking by novation) and assigns;
- (meaning not limited) the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind; and
- (dollars) an amount of money is a reference to the lawful currency of Australia.