Terms and Conditions:
(a) Prices quoted by SAVI systems for the supply of goods & services:
(i) are ex SAVI Systems warehouse in Bentley WA, or direct from the Australian distribution warehouse for the particular product. Unless specifically stated all freight and delivery charges within to the Purchaser's premises or other address specified by the Purchaser within Australia are for the account of the purchaser for orders below $500.00.
(ii) Include goods and services tax ("GST") except where otherwise stated
(iii) Unless otherwise stated are in Australian dollars.
Any request by the Purchaser for variation of an Agreement must be made to Amber in writing showing full and detailed information thereof, and SAVI Systems will advise promptly prices and terms and conditions for the variations concerned. No variation work will be commenced unless and until SAVI Systems receives a signed acceptance from the Purchaser of the terms and conditions and price of such variations. SAVI Systems reserves the right to refuse any such request for variations.
(a) Where goods are to be delivered to a nominated address SAVI systems shall be deemed to have delivered the goods in accordance with the contract if it obtains a receipt or signed delivery docket for the goods from any person at that address.
(b) If a nominated address is unattended or if delivery cannot otherwise be effected or the goods cannot be dispatched for any reason beyond SAVI Systems’ control, SAVI Systems may store the goods at the Purchaser’s risk and expense or take such other steps as SAVI Systems considers in its sole discretion to be appropriate.
(c) SAVI Systems shall not be responsible for unloading goods at the point of delivery.
(d) The risk of loss or damage to goods shall pass to the Purchaser at the time of delivery or when the Purchaser is notified that the goods are available for dispatch, as the case may be.
(e) If any delivery or completion period is quoted by SAVI Systems it shall be deemed to be given on the following basis:
(i) In the case of standard goods, the delivery or completion period stated in any quotation, tender or Agreement is subject to prior sale and/or confirmation of availability of by SAVI Systems’ supplier;
(ii) In the case of goods which are in whole or in part subject to special design, manufacture or other non standard requirements, the delivery or completion period stated in any quotation, tender or Agreement is subject to the Purchaser having given SAVI Systems full final and adequate instructions and/or drawings and having fulfilled any other requirement specified by SAVI Systems to enable SAVI Systems to proceed uninterruptedly with the supply and/or manufacture of the goods.
(iii) Where SAVI Systems is required to install and/or commission the goods, the delivery or completion period stated in any quotation, tender or Agreement is subject to the Purchaser having fulfilled all requirements referred to in (ii) above and further is subject to site availability acceptable to SAVI Systems and completion of all activities necessary to enable SAVI Systems to install and/or commission the goods. In all cases, SAVI Systems will use its best endeavours to meet the time quoted for delivery of goods or completion of the installation of goods. However the time so quoted is an indication only and shall not be considered a binding commitment upon SAVI Systems. SAVI Systems shall not be liable for any loss or damage suffered by the Purchaser or otherwise arising out of the Amber's failure to meet the times quoted.
(a) Except as otherwise agreed in writing by SAVI Systems, payment for products or services shall be made in full, including freight, handling, packaging and insurance charges, before physical delivery of the goods or services.
(b) Where delivery of goods or services to Purchaser is effected before full payment is received, SAVI Systems will invoice due amounts on shipment, and except as otherwise agreed in writing Purchaser must settle all amounts due within 30 days of date of invoice.
(c) Notwithstanding any previously agreed credit account and payment arrangement, if SAVI Systems considers in its sole discretion that the financial condition of the Purchaser so warrants, it may decline to deliver or install goods or carry out the work unless the Purchaser provides a satisfactory security for the purchase price. Should the Purchaser fail to comply with this provision SAVI Systems may cease deliveries and/or leave the site with any re-establishment or other costs thereby incurred to be borne entirely by the Purchaser.
(d) Should the Purchaser intend to arrange lease or hire purchase finance for the purchase of the goods or any part thereof, the Purchaser shall notify SAVI systems of such intention and shall arrange for the lease or hire purchase documentation to be completed in sufficient time to permit settlement to be effected by the finance company on or before the date of delivery or installation.
(e) If the Purchaser fails to pay amounts properly invoiced pursuant to these Terms, SAVI systems shall be entitled (without prejudice to any other right hereunder or at law):
(i) to charge interest on amounts due from the date when due until payment is received by SAVI Systems at the rate of 2½% per cent per month.
(ii) where SAVI Systems still retains title, to retake possession of the goods and to give the Purchaser written notice that SAVI Systems intends to resell the goods after the expiry of seven (7) days from the date of the notice and if the Purchaser fails within that period to pay the purchase price with interest thereon then Amber shall be released from all obligations under the Agreement or other contract with Purchaser.
(iii) to commence legal proceedings without notice and the Purchaser shall pay all SAVI Systems’ legal and other costs incurred by SAVI Systems in seeking collection of the due amount.
(a) No goods shall be returned to SAVI Systems without the prior authorization of SAVI Systems.
(b) Such authorization will be at the sole discretion of SAVI Systems, and on the basis that Purchaser agrees that:
(i) Where in the opinion of SAVI Systems goods are not returned in the condition in which they were supplied ("as supplied condition") any costs incurred by SAVI Systems in restoring goods to "as supplied condition" are for the account of the purchaser;
(ii) SAVI Systems may impose a special fee to be determined by SAVI Systems at its sole discretion to cover among other things, restocking charges and any loss SAVI Systems may incur in reselling such returned goods;
(iii) SAVI Systems may apply such other conditions as it may deem necessary.
(a) Where SAVI Systems is not contracted to install the goods, SAVI Systems representatives may, if so required by the Purchaser, provide advice on the siting, installation (if appropriate) and operation of the goods. In providing this advice the representatives of SAVI Systems are expressing personal views derived from their experience in the industry but except as provided in clause 11, SAVI Systems shall have no liability whatsoever to the Purchaser in respect of any such advice given by any representative.
(b) Where specified by SAVI Systems in relation to goods being supplied and or to services including installation service, the Purchaser shall at its own expense provide power of appropriate quality and at the required locations. SAVI Systems shall be under no liability whatsoever should any loss be incurred and/or damage suffered including consequential loss or damage as a result of the required power not being continually available.
(c) If any repairs to or maintenance of the goods (other than those covered by SAVI Systems’ normal warranty provisions) are to be carried out by SAVI Systems, and the Purchaser does not have a current Maintenance Agreement with SAVI Systems, then the cost of such work shall be charged to the Purchaser at SAVI Systems normal rates for such work.
(a) Property in each unit of the goods does not pass until such time as payment in full for the goods has been made and the Purchaser does not owe any other money to SAVI Systems on any account whatever and whether or not such other money has become due for payment. Until such time, the Purchaser will hold all the goods supplied as bailee for SAVI Systems and must keep the goods separate from other goods in the Purchaser’s possession and store them in a manner that identifies them as belonging to SAVI Systems.
(b) The Purchaser may resell the goods, but only as fiduciary agent and trustee for SAVI Systems, by way of bona fide sale at full market value and in the ordinary course of its business
(c) The Purchaser must not combine the goods with any other goods unless the goods can be easily extricated from such combination at any time.
(d) The Purchaser grants a licence to SAVI Systems to:
(i) dismantle any such combination and to enter any place where the goods or other goods are located in order to extricate the goods; and
(ii) enter any place where the goods may be located so SAVI Systems can retake possession of the goods.
(e) If the Purchaser is unable to grant SAVI Systems any such licence the Purchaser, on being requested by SAVI Systems so to do, shall immediately dismantle such combination, extricate the goods and deliver them to SAVI Systems. SAVI Systems shall not be liable and is hereby indemnified by the Purchaser for any damage caused by or costs incurred in dismantling the goods.
(f) Until the debts have been paid in full the Purchaser must hold such part of the money it receives from:
(i) any sub-sale of the goods under the immediately preceding subclause; and
(ii) the proceeds of any sale of any products into which the goods have been mixed or converted by any process
as equals the amount of the debts at the time the money is received (‘the Proceeds’) as bailee, fiduciary agent and trustee for SAVI Systems.
(g) The Purchaser expressly acknowledges that it is bound by such fiduciary obligation and acknowledges that:
(i) it must hold the Proceeds on trust for SAVI Systems.
(ii) it must place the whole of the Proceeds in an account separate from its own moneys (‘the Proceeds Account’).
(iii) it must maintain the Proceeds Account separate from its own moneys at all times.
(iv) it must maintain proper records for the Proceeds Account.
(v) it must not assign or encumber the Proceeds or do any other act in derogation of SAVI Systems’ legal or beneficial interests.
(vi) it must account to SAVI Systems on demand for all moneys standing to the credit of such account;
(vii) SAVI Systems may appropriate payments to such goods and accounts as it thinks fit, notwithstanding any contrary appropriation by the Purchaser;
(viii) for the purposes of identification of different consignments of the goods purchased from SAVI Systems and receipt of Proceeds, the Purchaser agrees that the principle of “Last In, First Out” shall be applied to any items which cannot be distinguished.
(ix) receipt by the Purchaser of payment for the sale of any products into which the goods have been mixed or converted by any process shall be treated as evidence that it has received Proceeds; and
(x) SAVI Systems trace the Proceeds in equity.
If it is necessary for the lawful fulfillment of the Agreement or other contract:
(a) For the Purchaser to hold or obtain import, export, currency or other licence, consent or authority, then the Purchaser shall be obliged to obtain the same.
(b) For SAVI Systems to hold or obtain any such licence consent or authority then SAVI Systems shall apply for the same, but if the same is refused this Agreement of other contract shall forthwith come to an end, and neither SAVI Systems nor the Purchaser shall be under any liability in respect thereof. Where required by SAVI Systems, the Purchaser shall execute and deliver to SAVI Systems prior to delivery of the goods, an end user operating system licence or other software licence in a form required by SAVI Systems or the supplier of the goods to SAVI Systems.
(a) Except where the Purchaser is a "Consumer" for the purpose of the Competition & Consumer Act 2010 (the Act), and unless otherwise agreed in writing, SAVI Systems
(i) makes no warranty of any kind as to the goods supplied or to work done in respect of the installation of the goods pursuant to this Agreement and all terms, conditions and warranties and whether express or implied other than contained in this Agreement are hereby expressly negated and excluded,
(ii) shall not be liable to compensate the Purchaser for any loss (including but not limited to loss of profits and consequential loss) or damage to person or property, or for death or injury caused by an act or omission of SAVI Systems, its employees or agents including loss or damage arising out of the installation of the goods or from failure of the goods.
(b) In connection with the supply by SAVI Systems to the Purchaser of any goods or services within the meaning of the Act, other than goods or services of a kind ordinarily acquired for personal domestic or household use or consumption, the liability of SAVI Systems in the event of a breach of a condition or warranty implied by the Act (other than a condition or warranty implied by Sch 2, Part 3-2) shall be limited to one of the following as determined by Amber:
(i) in the case of goods, to any one or more of the following:
(aa) the replacement of the goods or the supply of equivalent goods;
(bb) the repair of the goods;
(cc) payment of the cost of replacing the goods or acquiring equivalent goods;
(dd) the payment of the cost of having the goods repaired; or
(ii) in the case of services:
(aa) to the supplying of the services again;
(bb) to payment of the cost of having the services supplied again.
SAVI Systems shall not be liable for failure to perform its obligations if the failure arises from circumstances beyond its reasonable control, including but not limited to fire, explosion, strikes, lock-outs or any other industrial disputes, failure or refusal of its supplier to supply the goods, inclement weather, acts of God, Governmental action. In no such event shall the Purchaser be entitled to damages of any kind for late performance or failure to perform.
The Purchaser shall not assign its obligations hereunder without SAVI Systems’ written consent.
A provision of or a right created under these terms in favour of SAVI Systems may not be waived or varied except in writing signed by SAVI Systems. SAVI Systems may elect not to exercise its rights arising from a breach of any provision of these terms and such election, even if the breaches are continuous and multiple, shall not create any estoppel or presumption against Amber.
A quotation, and any contract or Agreement of which it shall form the basis, shall be interpreted and enforced in accordance with the laws for the time being in force in the State of Western Australia and the Purchaser agrees to submit to the jurisdiction of the Courts therein.