Terms and Conditions
All terms and conditions are for sales and deliveries ex TODAYTECHwarehouse only.
1. Credit Account Terms & Conditions
The terms and conditions set out in this credit application form replace all prior terms and conditions issued to the Customer and will apply to credit extended by any of MOEBIUS Systems Pty Ltd ABN 88 052 227 308, MOEBIUS Solutions Pty Ltd ABN 79 050 214 849 TODAYTECHDistribution Pty Ltd ABN 56 059 027 520 or TODAYTECH Group Limited ABN 62 059 406 254 and any of their related bodies corporate (as defined by The Corporations Act 2001) or assigns (collectively called “TODAYTECH“), and the signed credit application form will be treated as conclusive evidence of the Customer’s agreement to that effect. The Customer agrees that if there is any inconsistency between these terms and conditions and those contained in the Customer’s order, these terms and conditions will apply to the extent of any inconsistency. These, together with any other terms and conditions agreed upon in writing between TODAYTECH and the Customer shall apply to all sales of Goodsby TODAYTECH to that Customer to the exclusion of any representations and constitute the entire contract between them. Any special conditions specified on a sales invoice issued after the date of this credit application, to the extent of inconsistency with these terms and conditions, take precedence over these terms and conditions.
“Costs” includes all costs payable by any TODAYTECH member to any lawyer or other agent in relation to any breach of these terms and conditions and, without limitation, the collection of payment for any overdue account.
“Goods” includes services.
“TODAYTECH” means MOEBIUS Systems Pty Ltd ABN 88 052 227 308, MOEBIUS Solutions Pty Ltd ABN 79 050 214 849 TODAYTECH Distribution Pty Ltd ABN 56 059 027 520 and TODAYTECH Group Limited ABN 62 059 406 254 or, for all or any of them, any of the related bodies corporate (as defined by The Corporations Act 2001) or assigns from whom Goods are purchased.
3. Supply Of Credit
(a) An application to open a credit account must be completed on an official credit application form (TT0058) before supply of credit will be considered.
(b) Terms and conditions on which a credit account may be granted and operated are subject to change without notice.
(c) Payment of credit accounts must be received well within the Credit Terms granted to you.
(d) TODAYTECH reserves the right to take the following action against any customer outside its credit terms:
i. Withhold supply and dispose of stock order held.
ii. Institute legal action for recovery of any amount outstanding and costs incurred.
iii. Terminate credit facilities; and TODAYTECH shall not be liable to the customer for any loss or damage resulting directly or indirectly from such action.
4. Reservation of Title
(a) Title to any Goods supplied by TODAYTECH to the Customer shall remain with TODAYTECH until the total amount due in respect of the Goods and all other monies owing to TODAYTECH have been paid in full (the “Debts”).
(b) The Customer shall have the right to resell Goods, but only as fiduciary agent and trustee for TODAYTECH by way of bona fide sale at full market value and in the ordinary course of its business.
(c) Until all the Debts have been paid for in full:
i. The Customer shall take custody of the Goods as trustee, fiduciary agent and bailee for TODAYTECH;
ii. The Customer shall keep TODAYTECH’s Goods separate from any other goods and properly marked, stored, protected and insured.
iii. The Customer must hold all of the money it receives (“Proceeds”):
a. From sale of any property into which Goods supplied byTODAYTECH have been incorporated; or
b. For the sale of goods or provision of services including the Goods supplied by TODAYTECH as bailee, fiduciary agent and trustee for TODAYTECH, but the Customer need not hold on trust any money exceeding the amount of the Debts at the time the money is received. Receipt by the Customer of payment shall be treated as conclusive evidence that it has received Proceeds.
iv. The Customer expressly acknowledges that it is bound by the fiduciary obligation created in the preceding subparagraph and acknowledges that:
a. It must hold the Proceeds on trust for TODAYTECH.
b. It must place the whole of the Proceeds in an account separate from its own moneys (“the Proceeds Account’).
c. It must maintain the Proceeds Account separate from its own moneys at all times.
d. It must maintain proper records for the Proceeds Account.
e. It must not:
i. assign or encumber any book debts arising from sales made in the circumstances set out in clauses 4.(c) iii. a. and b.;
ii. assign or encumber the Proceeds; or
iii. do any other act in derogation of TODAYTECH’s legal or beneficial interests, including those arising under these terms and conditions.
f. It must account to TODAYTECH on demand for all moneys standing to the credit of such account;
g. TODAYTECH may appropriate payments as it thinks fit, notwithstanding any contrary appropriation by the Customer;
h. For the purposes of identification of different consignments of goods and services purchased from TODAYTECH and receipt of Proceeds, the Customer agrees that the principle of “Last In, First Out” shall be applied to any items that cannot be distinguished
i. TODAYTECH may trace the Proceeds in equity.
(d) On demand by TODAYTECH the Customer must assign to TODAYTECHall book debts not exceeding the amount of the Debt at the date of demand.
(e) TODAYTECH may at any time, without notice to the Customer and without prejudice to any other rights which it may have against the Customer, terminate any contract connected with the Goods and the bailment referred to in paragraph (c), and enter upon any premises owned or occupied by the Customer where TODAYTECH reasonably believes the Goods may be stored, repossess the Goods without liability for any damage caused, and subsequently dispose of theGoods at TODAYTECH‘s discretion if:
i. The Debts are not paid in accordance with these terms and conditions and any other contract or arrangement betweenTODAYTECH and the Customer.
ii. TODAYTECH receives notice of or reasonably believes that:
a. A third person may attempt to levy execution against theGoods;
b. The Customer is insolvent (within the meaning of the Corporations Act 2001) or bankrupt;
c. The Customer has entered into any arrangement or composition with it’s creditors, gone into liquidation, or has appointed a receiver, a receiver and manager or administrator.
d. If after repossession under paragraph (e) TODAYTECH sells the goods, TODAYTECH shall account to the Customer for any excess of the proceeds of sale, less costs of repossession and sale, over the costs of the Goods.
e. If any goods belonging to TODAYTECH are disposed of by the Customer or an insurance claim is made in respect of them, TODAYTECH shall be entitled to trace the sale or insurance proceeds, which proceeds shall be held by Customer in a separate bank account on trust forTODAYTECH.
5. Delivery and Risk
(a) Risk in the Goods will pass to the Customer upon delivery to the Customer’s nominated point of delivery.
(b) If the Customer nominates their own vessel or vehicle to deliver theGoods to the Customer then risk will pass when the Goods are loaded onto the Customer’s nominated vessel or vehicle and the Customer shall be responsible for arranging the insurance of the Goods.
(c) Where the Customer has nominated their own vessel or vehicle for delivery TODAYTECH shall not be liable to the Customer for any loss in the event of any failure in delivery or to arrange insurance.
(d) TODAYTECH reserves the right to deliver in instalments and all such instalments, where separately invoiced, shall be paid for without regard to the delivery of subsequent instalments. A part delivery of an order shall not invalidate the balance of the order.
(e) The supply of Goods by TODAYTECH to the Customer is subject to the continued existence of distributorship agreements with TODAYTECH‘s Suppliers and on those Suppliers’ ability to supply sufficient quantities and types of the Goods to TODAYTECH.
(f) While TODAYTECH shall use all reasonable endeavors to meet agreed delivery dates, TODAYTECH shall not be liable to the Customer for any loss or damage whatsoever should it be delayed or prevented from delivering goods, supplying services, or otherwise performing any of its contractual obligations due to any cause or circumstances beyond TODAYTECH’s reasonable control, including those set out in the immediately preceding sub-paragraph.
(g) In the event of any delay in delivery or supply, the due date shall be deferred for a period equal to the time lost by reason of the intervening cause or circumstance. Delivery dates are not to be treated as an essential condition of the sale.
(h) Subject to immediately preceding sub-paragraph, delivery dates shall not be varied once they have been agreed, without TODAYTECH‘s prior written approval. Should TODAYTECH agree to postpone delivery, the goods in question shall be stored at Customer’s risk andTODAYTECH reserves the right to impose a weekly storage charge. Where delivery is postponed for more than 3 months TODAYTECH atTODAYTECH ‘s discretion to reflect TODAYTECH’s current list price may increase any fixed contract prices.
(i) TODAYTECH may at it’s discretion sell any goods subject to the immediately preceding sub-clause still in it’s possession three (3) months after the mutually agreed deferred delivery date and seek damages for any loss incurred by TODAYTECH as a result of the deferment in the delivery date.
(j) TODAYTECH shall not be liable for any failure to perform the contract or supply any materials, or for any delay or non delivery due to strikes, fires, explosion, flood, riot, lockout, injunction, interruption of transportation, accidents, inability to obtain supplies at reasonable prices, war or apprehension of war, force majeure, governmental action, or any other circumstances beyond TODAYTECH’s control.TODAYTECH will not be liable for delay loss or damage (including consequential economic loss) due to scarcity of materials, strikes, acts of god or any other cause beyond its reasonable control.
6. Price and Credit Card Charges
(a) Prices are subject to change without notice and Goods will be invoiced at the price ruling on the date of dispatch.
(b) A payment by a Customer by credit card automatically operates as an instruction to TODAYTECH to charge the Customer’s account with a credit card surcharge of 1% for bankcard, mastercard and visa and 3% for Amex plus GST.
Any amount which is due and unpaid by the Customer shall bear interest from the date of supply until payment at the interest rate of 12% per annum, compounded on a daily basis. All payments received byTODAYTECH from the Customer will be credited first against any interest due under this clause.
8. Warranties and Liabilities
Except if expressly provided in these terms and conditions and to the extent permitted at law:
(a) TODAYTECH shall not be under any liability, whether in contract, tort or otherwise in respect of defects in goods delivered or for any injury, damage or loss resulting from such defects or from any work done in connection therewith except to the extent that any statute applicable to these Terms and Conditions prevent the exclusion, restriction or modification of such terms and conditions;
(b) TODAYTECH shall not be liable to the Customer for any loss of profit howsoever arising nor shall TODAYTECH be under any liability whether in contract, tort or otherwise for any injury, damage, or loss whether consequential, special, indirect or otherwise save as is expressly provided in these Terms and Conditions.
(c) The Customer must not use trademarks, names, or other intellectual property rights of TODAYTECH or any supplier to TODAYTECH without the prior written approval of TODAYTECH or the relevant supplier. The Customer indemnifies TODAYTECH against any liability to or action by a third party for infringement or alleged infringement of a patent, registered design, trademark or copyright in respect of goods manufactured to the Customer’s specification.
(d) The Customer indemnifies TODAYTECH against any liability for any direct, indirect or consequential injury, loss or damage arising out of any act, default or omission of, or any representation made by the Customer or its servants or agents.
(e) All goods are supplied in accordance with usual industry standards and TODAYTECH shall not be liable to the Customer for the condition or quality of the goods that comply with these standards.
(f) The liability of TODAYTECH for:
i. a breach of an express term of these terms and conditions is limited to refunding the amount paid by Customer for theGoods (including services) in respect of which the breach occurred; and
ii. a breach of any non-excludable condition (other than one implied by s69 of the Trade Practices Act 1974) is limited, atTODAYTECH ‘s option, to any one of supplying, repairing or replacing, or paying the cost of supplying, repairing or replacing, the Goods (including services) in respect of which the breach occurred.
(g) TODAYTECH will not accept any responsibilty for the loss of software, data or any other electronic information resulting from carrying out required service or repairs. It shall be the responsibility of the customer to backup any software, data or any other information that the customer believes to be important.
(h) TODAYTECH will not take acceptance of any goods returned with out prior approval by way of a returns authorisation (RA) number issued by TODAYTECH.
(i) The Customer agrees to pay TODAYTECH a restocking fee of 10% of the purchase price of any goods returned to TODAYTECH where those goods:
i. are delivered by TODAYTECH in accordance with the Customer’s order and;
ii. are not faulty or defective.
(j) For the purposes of this clause, a final determination as to whether any such goods are “faulty or defective” or, are returnable underTODAYTECH’s returns policy, will be made by TODAYTECH uponreceipt and inspection of the goods. The Customer agrees thatTODAYTECH has the right to redetermine the restocking fee upon seven (7) days notice.
(a) TODAYTECH shall not be liable on any claim by the Customer, whether in respect of or arising out of a breach of contract or in any other way, including claims in equity or tort, or arising under statute, unless within seven (7) days after delivery of the Goods about which the claim is made, the Customer has given TODAYTECH notice in the prescribed form. Time is an essential term of the contract betweenTODAYTECH and the Customer for the purposes of giving notice of claims.
(b) Any claim, including claims of set-off at law or in equity, not made within seven (7) days after delivery of the Goods about which the claim is made, shall be barred.
(c) A valid notice of claim must be:
i. in the prescribed form;
ii. addressed to the Credit Manager for the time being ofTODAYTECH;
iii. specify any claim made with particularity; and
iv. be received by TODAYTECH at it’s head office within seven (7) days after delivery of the Goods about which the claim is made.
10. Invoices Conclusive Evidence of Amount Due
Each invoice issued by TODAYTECH must be treated by the Customer as conclusive evidence of the amount of money owed by the Customer toTODAYTECH in accordance with the terms stated on the invoice.
11. Compliance with applicable U.S Law
All technology, technical information and technical data received directly or indirectly hereunder by the Customer from TODAYTECH is intended solely for the user of the Customer and its Customers. All “Direct Products” (as defined in the United Stated Department of Commerce Comprehensive Export Schedule) of such technology, technical information and technical date are intended solely for the sue of the Customer and it’s Customers within such countries as are forbidden or restricted now or hereafter by United States Export Administration laws and all other applicable United States laws, as now or hereafter exist,TODAYTECH expressly reserves the right to refuse any order which, inTODAYTECH’s sole judgement, is or maybe a violation of such laws on the part of the Customer.
The Parties agree that this Agreement and the provision hereof shall be construed in accordance with the Law of the State of New South Wales Australia save to the extent necessary to give full and proper effect to the provision of and intentions of Clause 11.
13. Clerical errors
Clerical errors are subject to correction without notification.
14. Waiver And Variation
A provision of, or a right created under, these conditions in favour ofTODAYTECH may not be waived or varied except in writing signed byTODAYTECH. TODAYTECH may elect not to exercise its rights arising from a breach of any provision of these conditions and such election, even if the breaches are continuous and\or multiple, shall not create any estoppel or presumption against TODAYTECH.
All orders are subject to acceptance by TODAYTECH.
TODAYTECH’s sale invoices are made on a supply only basis. Installation and commissioning (if any) is at the expense of the Customer unless otherwise specified in writing by TODAYTECH.
17. Dimensions, Performance Data and Other Descriptive Details
(a) Photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, the descriptive literature or a catalogue, approximate the goods offered but may be subject to alteration without notice.
(b) Any performance data provided by TODAYTECH or manufacturer is an estimate only and should be construed accordingly.
(c) TODAYTECH reserves the right to make changes in the construction and/or design of Goods and not withstanding any such changes the Customer shall accept in performance of any order of TODAYTECH‘s current corresponding standard models.
(d) The Customer expressly acknowledges and agrees that it has not relied upon any of the information provided by TODAYTECH to the Customer and that it understands that any of the information provided by TODAYTECH in relation to the goods or services prior to the sale of the goods or services only approximates the goods or services and can only be treated as an estimate.
18. Changes in customer structure
The Customer must advise TODAYTECH in writing of any changes in its business structure shown in this credit application within 2 business days of such change occurring. If the Customer fails to observe this term, or has made a misrepresentation to TODAYTECH or given information which is untrue, credit facilities may be withdrawn and all charges made to the Customer’s account will become due immediately. The person or entity shown in TODAYTECH’s records as the Customer remains liable toTODAYTECH for Goods supplied until TODAYTECH has accepted a fresh credit application from the person or entity operating the new business structure.