TRAVMAR PTY LTD trading as ATS Solutions (ABN: 13 145 611 472) agrees to supply goods ("Products") and/or services ("Services") to the Customer on these standard terms and conditions ('Terms").
2. Purchase Orders.
Purchase orders for Products or Services will constitute an offer by the Customer and may only be accepted by TRAVMAR PTY LTD trading as ATS Solutions (ATS) in writing. Any amendments to purchase orders for Products or Services must be approved by ATS in writing to be effective. Only these Terms (no other terms and conditions which may be attached to or incorporated in a purchase order) form part of the agreement between the parties. Acceptance of a purchase order will not be acceptance of any such terms or conditions.
Payment terms are strictly Net 7 Days from the date of invoice. Products will be invoiced on delivery. Services will be invoiced at the end of each month and on completion or as otherwise prescribed in the documents describing the Services to be supplied. ATS may at any time change the price of goods and services without giving notice to the client.
Any amount not paid on the due date for payment will carry interest from that date until payment is made in full at the rate being 2 percentage points above the overdraft rate charged on overdraft accounts over $100,000 by the National Australia Bank from time to time.
ATS makes no warranty in relation to the Products or Services other than as contained in these Terms or as prescribed by a law which cannot be excluded or in the case of Products, as provided by the Products' respective manufacturers as made known to the Customer in the documents supplied by ATS or the manufacturer or as otherwise published or made known to the Customer. Defects in Services reported to ATS within 30 days of delivery of the Service will be rectified by ATS at no charge to the Customer. ATS will not provide claimed warranty services for defects or deficiencies in Products or Services which are caused by:
(a) external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge or spike;
(b) the use of a Product for other than its intended purpose;
(c) the use with or connection of a Product to items not approved by ATS;
(d) the performance of maintenance or attempted repair by persons other than ATS or as authorised by ATS;
(e) changes made to the deliverables created by performance of the Services or to the operating environment;
(f) the relocation of Products by the Customer; or
(g) any configuration or reconfiguration by the Customer of the Products or other equipment with which the Products interface.
5A. Australian Consumer Law Warranty
(a) If the goods are of a kind ordinarily acquired for personal domestic or household use or consumption, or the amount paid or payable for the goods does not exceed $40,000 or any greater amount prescribed under the Australian Consumer Law, and the goods have not been acquired for re-supply or for the purpose of using them up or transforming them, in trade or commerce, then the provisions of this clause apply, but otherwise this clause has no effect whatsoever.
(b) The following provision applies:
“Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are 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.”
(c) The period of the warranty provided under this clause is 12 Months unless explicitly specified.
(d) The benefit of the warranty provided in this clause is in addition to any other rights and remedies that you may have under a law in relation to the goods to which the warranty relates.
(e) In order to make a claim under the warranty within the specified period, you must return the goods to:
ATS Solutions, Unit 4/554 Newcastle Street, West Perth WA 6005 specifying the flaw and/or defect complained of.
(f) Upon receipt of the claim, we will investigate the claim, and if the claim satisfies the terms of the warranty then we will fulfill our obligations under the warranty to replace the goods and refund you the delivery costs of returning the goods to us.
ATS will use its reasonable endeavours to deliver Products or Services to the Customer by the date agreed but will not be liable for any delays in delivery caused by matters beyond its control. Freight charges incurred by ATS in delivering Products to the Customer will be invoiced to the Customer at cost unless quoted otherwise.
Unless the Customer gives ATS written notice of any aspect of a deliverable which is alleged by the Customer to be otherwise than in accordance with these Terms or any applicable specifications, within 7 days of the date of delivery of that deliverable, the Customer shall be deemed to have accepted that deliverable on delivery. Where the Customer puts a deliverable to commercial use, it shall be deemed to have accepted that deliverable on the first day of such use, whether or not a notice of the kind contemplated by this clause is given to ATS as required.
Products returned will only be credited to the Customer's account if the return is authorised by ATS and the Products are in the same condition as delivered by ATS and only if received by ATS within 7 days of delivery. ATS reserves the right to charge the Customer for any costs or losses incurred by ATS if Products which are not faulty are returned or returned without authorisation, returned later than 7 days from delivery or in a different condition to the condition the Products were in when delivered by ATS. ATS will use its best endeavours to minimise such costs and losses.
9. Risk and Insurance.
Risk of loss, theft, damage, deterioration or destruction of Products passes to the Customer upon the earlier of:
(a) delivery to the Customer;
(b) the taking of possession by the Customer; and
(c) the delivery to any carrier contracted to the Customer for delivery to the Customer.
(a) ATS retains ownership of the Products until the Products are delivered and the Customer has paid all due amounts in full, whichever is the later. If ATS delivers the Products before all due amounts are paid in full, then, until payment is made, the Customer shall hold the Products as bailee for ATS and store or otherwise identify the Products in a manner that clearly shows the ownership of ATS, and, if required, shall deliver up the Products to ATS at the Customer’s cost and expense.
(b) The Customer irrevocably authorises ATS, its employees and agents to enter upon the Customer’s property to repossess the Products if the Customer fails to pay the price in full on the due date. The Customer will have no claim against ATS for any loss, damage or claim that might be occasioned by the Customer by repossession and removal of the Products. ATS may recover from the Customer fees, costs and expenses incurred in repossession of the Products and recovery of outstanding monies.
(c) To the extent that the parties are entitled to contract out of the Personal Properties Security Act 2009 (Cth) (“PPSA”), the parties contract out of those provisions that are contrary to this clause. ATS is entitled to register its interest in the Products under this clause in compliance with any written law, including the PPSA, and is authorised by the Customer to disclose any information as may be required in respect of such registration. The Customer will do whatever necessary to ensure that ATS receives first priority for its security interest and that such interest is enforceable, perfected and otherwise effective under the PPSA. The Customer will enable ATS to register a financing statement or financing change statement. The Customer acknowledges that ATS has a purchase money security interest over the Products and agrees that ATS may register such interest in terms of the PPSA.
(d) To the extent that there is an ongoing supply of Products, these Terms and any registration on the Personal Property Security Register, will cover all supplies between the parties for the duration of this agreement. The Customer may not dispose of, lease, hire, bail or give up possession of any Products subject to the security interests of ATS. Notwithstanding any other provision of these terms of supply, if all money owing to ATS by the Customer has not been paid in full, the Customer is not entitled to obtain possession of any Products sold by ATS until after ATS’ security interest is perfected on the Personal Property Securities Register.
ATS and the Customer agree that they will keep at all times as strictly confidential any confidential information that is disclosed or provided by one party to the other. In this clause, "confidential information" means information in any form but does not include information that is already in the public domain at the time that it is disclosed or becomes part of the public domain otherwise than as a result of an unauthorised disclosure by ATS or the Customer.
12. Intellectual Property.
The Customer acknowledges that, unless otherwise agreed in writing, all intellectual property rights attaching to the Products or arising out of the provision of Services are and will remain the property of ATS (or its supplier, where such rights are owned by that supplier). Software will be licensed to the Customer on the terms of the relevant licence agreement provided with the Product or as otherwise agreed between ATS and the Customer in writing. Any rights to be conferred on Customer will only commence on payment of all charges payable in connection with those rights.
13.1 Where the Customer:
(a) makes default in any payment or breaches any of these Terms;
(b) becomes unable to pay its debts as and when they fall due; or
(c) commits an act of bankruptcy or, being a company, enters into liquidation or provisional liquidation whether compulsory or voluntary or compounds with its creditors generally or has a receiver or receiver manager or administrator appointed over all or part of its assets or passes a resolution for winding-up or a petition is presented for its winding-up ATS may without prejudice to any of its rights or remedies under these Terms or otherwise by notice to the Customer:
(d) suspend further supply and require payment in advance for future supply;
(e) recover possession of any Product for which payment has not been made;
(f) terminate all or any purchase orders for Products or Services which have been accepted by ATS;
(g) claim immediate payment of all moneys due by the Customer in respect of all Products and/or Services which will then be immediately due and payable notwithstanding the due date or dates for payment or any terms agreed by ATS; and/or
(h) continue to enforce its rights and recover from the Customer such payments and any other amounts owing as and when they fall due.
13.2 Where the customer;
terminates an enhanced support, monitoring or managed service prior to the contract expiration date, the customer will be liable for payment of the undelivered service through to the contract end date.
14. No Representations.
The Customer acknowledges that ATS has not made any warranty or representation, express or implied, in relation to the Products or the Services, including whether they are suitable for a particular purpose (whether such purpose was made known to ATS or not), unless provided in writing.
15. No Implied Terms.
To the fullest extent permitted by law, the parties agree to exclude any terms which would otherwise be implied into these Terms by any statute. The liability of ATS for a breach of a condition or warranty implied into these Terms by the Trade Practices Act, 1974 is limited at the option of ATS:
(a) if the breach relates to goods, to the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; and
(b) if the breach relates to services, the supplying of the services again or the payment up to a maximum of the amount paid to ATS of the cost of having the services supplied again.
16. Limitation of Liability.
ATS will not be liable to the Customer for any indirect or consequential damages including loss of profits, revenue, data, hardware, or use arising out of or in relation to the supply of Products and/or Services, even if ATS knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute.
Except in relation to liability for personal injury (including sickness and death), or damage to tangible property, ATS's liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Products and/or Services pursuant to these Terms or in respect of a failure or omission on the part of ATS to comply with its obligations under these Terms, shall be, in aggregate, limited to an amount equal to the amount paid by the Customer to ATS under these Terms.
Any variation to these Terms must be in writing. Variations to any of the Services agreed to be supplied will be charged by ATS at its then current rates for those additional services, unless otherwise agreed in writing
18.1 All notices must be in writing and sent by mail, hand delivery or transmitted by facsimile to the address or facsimile number of the receiving party and shall be deemed delivered, in the case of:
(a) Hand delivery, on delivery;
(b) posting, three days after dispatch; and
(c) facsimile, on completion of complete and legible transmission.
18.2 No leniency, indulgence or extension of time granted by ATS to the Customer will prejudice any of ATS's rights in any way or constitute a waiver of any of ATS's rights.
18.3 If any of these Terms are for any reason declared to be or become unenforceable, invalid or illegal, the remaining Terms will remain in full force and effect.
18.4 These Terms are governed by the laws of Western Australia, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts of Western Australia.
19. Taxes and GST.
The amount payable to ATS ("the Price") is exclusive of existing taxes, duties and government charges imposed or levied in Australia in connection with the supply of the Products and Services. The Customer shall be liable for any new or varied taxes, duties or charges imposed subsequent to ATS's quotation or proposal or to this agreement in respect of the supply of the Products and Services. ATS will issue a valid tax invoice where GST is to be recovered.
20. Foreign currency exchange.
Some or all of the Products to be supplied as part of the engagement may be sourced by ATS in a currency other than Australian Dollars. The price quoted for the Products shall remain valid for a period of 7 days from date of issue. ATS reserves the right to adjust the Australian Dollar price for the Products after this period.