Terms and Conditions
TERMS OF SUPPLY OF GOODS BY ICT GROUP PTY LTD
1.1 In this document:
“Delivery Date” means the date requested for delivery of Products in an Order.
“Delivery Point” means the place specified for delivery in an Order.
“Force Majeure” means any supply disruption, fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot or other event beyond the reasonable control of ICT that results in ICT being unable to perform an obligation under these Terms on time.
“ICT” means ICT Group Pty Ltd ACN 620 002 351.
“Indirect Loss” means any indirect or consequential loss, loss of opportunity, loss of revenue, loss of profit or anticipated profit, loss of business, loss of goodwill, or loss or corruption of data.
“Insolvency Event” means: (a) a person is unable to pay their debts as and when they become due; (b) a person is deemed or presumed to be insolvent under any legislation; (c) an application or order is made for the winding up or dissolution of a corporation; (d) an administrator, provisional liquidator, liquidator or person having a similar or analogous function is appointed in respect of a corporation; (e) a controller is appointed in respect of any property of a corporation; (f) a corporation is deregistered; (g) a person enters into or takes any action to enter into an arrangement with any of their creditors; or (h) anything analogous to or of a similar effect to anything described above occurs in respect of a person.
“Interest Rate” means the then-current Commonwealth Bank of Australia overdraft reference rate plus any margin charged by the bank to ICT.
“Loss” means loss, damage, liability, charge, expense, outgoing payment or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind.
“Order” means an order for Products placed by you and accepted by ICT in accordance with clause 2.
“Price” means the current list price for the Products, as specified by ICT from time to time. ICT may increase the list price for the Products at any time.
“Products” means the goods offered for sale by ICT, as specified by ICT from time to time.
“Terms” means these terms of supply.
1.2 Unless expressed to the contrary, in these Terms: (a) words in the singular include the plural and vice versa; (b) if a word or phrase is defined its other grammatical forms have corresponding meanings; (c) includes means includes without limitation; (d) no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it; and (e) a reference to: (i) a person includes a partnership, a joint venture, an unincorporated association, a corporation and a government or statutory body or authority; (ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation; (iii) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; (iv) $ or dollars is a reference to Australian currency; and (v) this or any other document includes the document as varied or replaced and despite any change in the identity of the parties. Headings do not affect the interpretation of these Terms.
2. ORDER PROCEDURE
2.1 You may submit written orders for Products to ICT in the form approved by ICT from time to time. Orders must specify: (a) the requested Products; (b) the requested quantity of each Product; (c) the Price as specified by ICT; (d) the requested Delivery Date; (e) the requested Delivery Point; and (f) if paying by credit card, valid credit card details.
2.2 Within 24 hours of receiving your order, ICT will communicate its acceptance or rejection of the order to you in writing (email being an acceptable form of writing).
2.3 Any variation to the details of an accepted Order must be agreed in writing between the parties.
3. SUPPLY OF PRODUCTS
ICT will supply Products to you in accordance with the Order and these Terms.
4. PRICE AND PAYMENT
4.1 ICT will issue you with an invoice for the Price at the time it accepts an Order.
4.2 Payment is due by credit card or bank transfer immediately upon ICT’s acceptance of an Order. If paying by credit card, you authorise ICT to debit the credit card specified in the Order for the Price immediately upon accepting the Order.
4.3 Unless otherwise stated, all amounts specified in an Order or price list are exclusive of goods and services tax (“GST”). If any GST is payable for the supply of Products under an Order, you must pay ICT an amount equal to the GST payable on or in respect of the supply at the same time as the Price is paid, provided that ICT has provided you with a valid tax invoice. Expressions used in this clause which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
4.4 If there is a change in law or a new law which increases or imposes any additional tax, duty, impost, levy or other charge imposed by a government or government agency (including an emissions trading scheme) (“Additional Tax”) which is payable by ICT in relation to or in connection with the sale, supply or delivery of the Products, ICT will be entitled to increase the Price by an amount sufficient to offset such Additional Tax.
4.5 ICT may charge interest at the Interest Rate on any overdue amount under these Terms, calculated on a daily basis from the due date for payment to the date on which the amount was paid. You must reimburse ICT for all costs and expenses (including legal costs on an indemnity basis) incurred in the collection of any overdue amount. You acknowledge and agree that such charges are a reasonable estimate of the likely damage to be suffered by ICT for late payment.
5. DELIVERY, ACCEPTANCE AND RISK
5.1 ICT will use reasonable efforts to deliver the Products by the Delivery Date. However, Delivery Dates are not guaranteed Time will not be of the essence in relation to delivery of the Products.
5.2 ICT will deliver the Products to the Delivery Point. Delivery will be made in one Delivery Point visit during normal business hours on a business day, unless otherwise agreed by ICT.
5.3 Prior to unloading of the Products from the delivery vehicle, (or loading, if you take delivery at ICT’s premises), you must check that the description and quantity of the Products described on the delivery docket conforms with the Order. You must note any discrepancies in writing on the delivery docket. Failure to make such notifications on the copy of the delivery docket retained by ICT constitutes your acceptance that the delivery docket is accurate and your acceptance of the Products. If ICT delivers the Products to an unattended Delivery Point, you must notify ICT of any non-conforming Products within 24 hours of such delivery, and failure to give such notice will constitute your acceptance that the delivery docket is accurate and your acceptance of the Products.
5.4 Risk in the Products passes to you when the Products are unloaded at the Delivery Point.
5.5 If an Order provides for Products to be delivered in instalments, each instalment of the Products will be deemed to be the subject of a separate Order and no default or failure by ICT in respect of any one or more instalments of the Products will affect your liability to pay for Products previously delivered.
5.6 If you fail to take delivery of the Products in accordance with these Terms, ICT, upon giving written notice to you, may store or arrange for the storage of the Products or any of them at your risk, and delivery will be deemed to have taken place. You must pay to ICT all costs and expenses including storage and insurance charges arising from such failure.
Notwithstanding earlier passing of risk or possession of the Products, title in the Products will remain with ICT and no legal or equitable interests whatsoever in the Products will pass to you until the Price due in respect of those Products has been paid in full and in cleared funds. Until the title has passed to you, you hold the Products as bailee of ICT.
7. PERSONAL PROPERTY AND SECURITIES ACT
7.1 Expressions used in this clause 7 which have a defined meaning in the Personal Property Securities Act 2009 (“PPSA”) have the same meaning as in that Act.
7.2 The parties acknowledge that an Order constitutes a security agreement and gives rise to a purchase money security interest (“PMSI”) in favour of ICT over the Products supplied or to be supplied to you as grantor pursuant to these Terms.
7.3 The Products supplied or to be supplied under these Terms fall within the PPSA classification of “Other Products” acquired by you pursuant to these Terms.
7.4 The parties acknowledge that ICT, as secured party, is entitled to register its interest in the Products supplied or to be supplied to you, as grantor, under these Terms on the PPSA register as collateral.
7.5 You waive your right to receive notification of or a copy of any verification statement confirming registration of a financing statement or a financing change statement relating to a security interest granted by you, as grantor, to ICT.
7.6 To the extent permitted by law:
(a) for the purposes of sections 115(1) and 115(7) of the PPSA: (i) the secured party need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4) of the PPSA; and (ii) sections 142 and 143 of the PPSA are excluded;
(b) for the purposes of s 115(7) of the PPSA, the secured party need not comply with sections 132 and 137(3); and
(c) the grantor agrees not to exercise its rights to make any request of the secured party under section 275 of the PPSA to authorise the disclosure of any information under that section or waive any duty of confidence that would otherwise permit non-disclosure under that section.
8. WARRANTIES AND LIABILITY
8.1 If an Order is for a “consumer transaction” for the purpose of the Australian Consumer Law (“ACL”), you have the benefit of statutory “consumer guarantees” pursuant to the ACL. Nothing in these Terms excludes such guarantees.
8.2 ICT warrants that Products supplied under these Terms comply with any specifications or descriptions of the Products published by ICT.
8.3 To the extent permitted by law, all terms, conditions and warranties which would otherwise be implied by law into these Terms are hereby expressly excluded. In relation to any such terms, conditions or warranties which cannot be lawfully excluded, then to the extent permitted by law, ICT’s liability for breach of such terms, conditions or warranties will be limited to, at ICT’s option:
(a) replacing the affected Products; or
(b) refunding the Price of the affected Products.
8.4 To the extent permitted by law, ICT’s maximum liability for any Loss incurred by you under or in connection with an Order, whether for breach of contract, tort (including negligence) or on any other basis will be capped at the amount of the total Price for that Order.
8.5 To the extent permitted by law, under no circumstances will ICT be liable for any Indirect Loss with respect to the subject matter of these Terms, regardless of whether such Indirect Loss could have been foreseen or prevented by ICT.
ICT may use the services of a third party subcontractor to assist it in performing its obligations under these Terms on condition that ICT will remain responsible for the performance of its obligations under these Terms.
10. FORCE MAJEURE
ICT will not be liable for any delay or failure to perform its obligations under these Terms if such delay is due to Force Majeure. If ICT’s delay or failure to perform its obligations is caused by Force Majeure, the performance of ICT’s obligations will be suspended while the Force Majeure continues.
11. SUSPENSION OR TERMINATION
ICT may, by written notice to you, immediately suspend an Order and all further Orders if: (a) you fail to make any payment due under these Terms by the due date for payment; (b) you breach any other provision of these Terms; or (c) you are subject to an Insolvency Event.
You may not assign or transfer your rights or obligations under these Terms to any person, except with the prior consent of ICT.
13. ENTIRE AGREEMENT
13.1 ICT is only willing to supply the Products under these Terms and not any other terms subsequently supplied or communicated by you, and you may only place an order on that basis. If you place an order for Products, you are deemed to have accepted these Terms, and ICT expressly rejects any other terms set out in that order document.
13.2 These Terms constitute the entire agreement between the parties and no other terms and conditions, including customer purchase orders, or variation or amendment of these Terms will be effective unless expressly agreed in writing by the parties.
14. GOVERNING LAW
These Terms are governed by the laws of the state of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Federal Court of Australia.