“BIZ-LYNX Technology” means BIZ-LYNX Technology Pty Ltd
“buyer” means the person placing an order with BIZ-LYNX Technology for the supply of goods;
“goods” means the products including, but not limited to:
(a) the supply of computer hardware and software by way of sale, design, manufacture, configuration, installation;
(b) repair of computer hardware and software; and/or
(c) the provision of technical support services for network solutions and managed services,
which are the subject of an order placed by the buyer;
“person” means a person over the age of eighteen years, a corporation, partnership and unincorporated body, words importing the singular include the plural and vice versa, and words importing any gender include all other genders;
“this agreement” means the Terms and Conditions of Sale set out herein.
(a) The buyer shall pay for goods:
(i) within net seven (7) days from the date of invoice in which goods are invoiced; or
(ii) as otherwise varied by agreement as evidenced in writing between BIZ-LYNX Technology and the buyer (‘varied payment terms’);
(‘the credit facility’)
(b) BIZ-LYNX Technology may, from the date payment for goods is due pursuant to clause 2(a):
(i) permanently withdraw the credit facility and, as at the date of withdrawal of the credit facility, demand
immediate payment of the total amount due and payable to BIZ-LYNX Technology for goods ordered; or
(ii) temporarily withdraw the credit facility and, as at the date of temporary withdrawal of the credit facility, stop credit until such time as arrears are brought within the credit facility terms;
(c) Where varied payment terms apply pursuant to clause 2(a)(ii), varied payment terms only vary the terms for payment for goods and will not otherwise affect the terms and conditions of this agreement unless specifically provided for as part of the
varied payment terms;
(d) Any payment towards satisfaction of the terms of clause 2(a) may be applied by BIZ-LYNX Technology in any manner it sees fit and at its option BIZ-LYNX Technology may apply a payment or payments first in satisfaction of those payments which
have been payable for the greater length of time; and
(e) In the event that the buyer is in breach of the terms and conditions of this agreement, by failure to pay for goods pursuant to the terms of clause 2(a), or breach of any other term and condition, the buyer will pay BIZ-LYNX Technology forteen per
cent (14%) per month interest on the outstanding amount calculated from the date payment is due to the date payment is made.
(f) In the event that the buyer is in breach of the terms and conditions of this agreement, by failure to pay for goods pursuant to the terms of clause 2(a) and 2(e), or breach of any other term and condition, the buyer will pay BIZ-LYNX Technology any
associated court costs, legal costs, costs associated with a third party Debt Collection agency, skip-tracing, field calls, correspondence, telephone or any other costs associated with the recovery of the goods invoiced in addition to the original invoice
amount and any interest charged as per clause 2(e).
(f) In the event that the buyer is in breach of the terms and conditions of this agreement, by failure to pay for goods pursuant to the terms of clause 2(a) and 2(e), or breach of any other term and condition, and after a period of two months (60 days) from
the date of the invoice, buyer information and invoice details will be referred to a debt collection agency or credit reference agency. The buyer will to the extent permitted by law, be liable for any costs associated of taking that action.
3. Retention of Title
(a) BIZ-LYNX Technology retains the legal and equitable title to goods until full payment is received from the buyer for goods;
b) Until BIZ-LYNX Technology receives full payment for goods, the buyer shall:
(i) hold goods as bailee for BIZ-LYNX Technology;
(ii) grant BIZ-LYNX Technology the right to enter without notice the buyer’s premises, or the premises at which goods are stored, without liability for the trespass or any resulting damage to retake possession of goods;
(iii) ensure that goods are stored so they are clearly identifiable as the property of BIZ-LYNX Technology; and
(iv) not alter or change goods so as to change their quality or nature;
(c) Until BIZ-LYNX Technology receives full payment for goods, BIZ-LYNX Technology shall be entitled to repossess goods if the buyer commits an act of bankruptcy or is declared bankrupt or becomes insolvent or enters into an agreement with
creditors or if a liquidator/receiver and/or manager is appointed to the buyer or any of the assets of the buyer.
BIZ-LYNX Technology gives no express warranty made by or on behalf of BIZ-LYNX Technology in relation to goods or their supply.
The Trade Practices Act 1974 and the Fair Trading Act 1987 may imply certain conditions and warranties into this agreement for the benefit of the buyer. To the extent that such conditions and warranties in respect of goods may, as between BIZ-LYNX
Technology and the buyer, lawfully be excluded, all such conditions and warranties are expressly excluded.
If BIZ-LYNX Technology fails or neglects to enforce at any time the provisions of this agreement this shall not:
(a) be construed, nor shall it be deemed to be, a waiver of any of BIZ-LYNX Technology’s rights;
(b) in any way affect the validity of the whole or any part of this agreement or prejudice BIZ-LYNX Technology’s right to take subsequent action.
(a) BIZ-LYNX Technology may accept return of goods if notification is received from the buyer within 14 days from the date of invoice;
(b) BIZ-LYNX Technology may accept return of goods that have been incorrectly ordered by the buyer provided that the goods have not been used and provided further that the buyer agrees to pay freight costs associated with the return and a minimum
restocking fee of fifteen per cent (15%) of the value of goods ordered or the amount charged to BIZ-LYNX Technology by a wholesaler, whichever is the greater;
(c) BIZ-LYNX Technology will not accept the return of goods which have been added to, used, modified, varied or changed by any person other than BIZ-LYNX Technology. BIZ-LYNX Technology will not, under any circumstances, accept the return of
goods that are sold as ex-rental, ex-demo, clearance stock or goods notified to the buyer as non-returnable; and
(d) BIZ-LYNX Technology shall have no liability for any damage or defects in the goods and/or packaging delivered to the buyer which arise as a consequence of improper storage, warehousing or transport, neglect, abuse or improper use, installation,
maintenance or unauthorised repairs.
In the event that any part of the provisions of this agreement are deemed to be invalid, unlawful or unenforceable to any extent, such provision shall be severed from the remaining provisions which shall continue to be valid and enforceable to the fullest
extent permitted by law.
BIZ-LYNX Technology and the buyer agree that the provisions of this agreement shall, in the event of dispute, be construed in accordance with the law of the State of Western Australia and be resolved by a Western Australian court.
9. Copyright, trademarks, patents and intellectual property rights
(a) The buyer acknowledges any and all of the trademarks, trade names, patents, copyrights and other intellectual property rights embodied in or in connection with the products and information, documentation, parts or software relating to properties
supplied by BIZ-LYNX Technology;
(b) The buyer shall not, during or after the expiry or termination of this agreement, without the prior written consent of BIZ-LYNX Technology, adopt any name, trade name, trade style or commercial designation or design used by BIZ-LYNX Technology,
reproduce any art appearing on the package of any goods or copy, sell or hire or offer for sale or hire a copy of goods;
c) The buyer shall indemnify BIZ-LYNX Technology against all liabilities, costs and expenses which BIZ-LYNX Technology may incur, or become liable to incur, as a result of work done in accordance with the buyer’s specifications or as a result of the
combination or use of goods with other equipment parts or software not supplied by BIZ-LYNX Technology involving infringement of any patent, copyright or other proprietary right.
10. Costs, Expenses and Disbursements
All costs, expenses or disbursements incurred by BIZ-LYNX Technology in the maintenance of the Purchasers account including debt collection agency fees and legal costs arising:
As a consequence of the Purchaser’s default in observing the terms and conditions of sale;
As a result of any of the Purchaser’s cheques being dishonoured; or by reason of BIZ-LYNX Technology requiring any further security to be provided; shall be payable by the Purchaser upon demand.
11. Service Availability & limitation on transfer of rights
(a) The client agrees that BIZ-LYNX may suspend its provision of services at any time for breach of the terms of this agreement and without notice.
(b)The client will not sell, transfer, licence, assign or otherwise create any legal or equitable rights or interests in any third party whatsoever, in relation to the services, client’s rights under this agreement or the associated hardware or software being administered.
(c) Any breach of clause (b) by a client or others will constitute a material breach and repudiation of this agreement by the client. Upon such breach, BIZ-LYNX shall have the right to terminate the services and this agreement immediately without further notice to the client. Upon such an event, all monies owed by the client to BIZ-LYNX shall immediately become due and owing.
(a)BIZ-LYNX may suspend or terminate provision of and access to the services without notice to the client if the client has not paid an amount due to BIZ-LYNX or paid within the time specified, is in breach of this agreement or is utilising the services for any unlawful or illegal purpose. BIZ-LYNX will not be responsible for any loss or damage to the client or any other party as a result of such suspension or termination.
(b)BIZ-LYNX may request the client to rectify any breach of this agreement. In addition to the other rights in this agreement, if the client fails to rectify any such breach within 30 days from the issuing of such a request by BIZ-LYNX, BIZ-LYNX is entitled to treat the client as having committed a material breach and repudiated his, her or its obligations under this agreement. BIZ-LYNX may then treat such repudiation as termination of this agreement without giving further notice. Upon such or any termination of this agreement, all monies owing by the client to BIZ-LYNX will immediately become due and payable together with the cost of decommissioning the services and any client equipment together with the costs of recovering any monies owed by the client to BIZ-LYNX. The cost of decommissioning the services and equipment shall be at the rate of $150 per hour (including GST) for all associated work and time spent by BIZ-LYNX including removal and return of client upon expiry of this agreement. The client shall give BIZ-LYNX 30 days notice of any request to decommission the services and or to return hardware, software and or data. The return of client hardware, software and or data shall only be required and occur during ordinary business hours and shall not include the set up and installation at any alternative site unless specifically agreed.
(c) In the event of BIZ-LYNX suspending or terminating provision of services, the client agrees that BIZ-LYNX shall be entitled to:
(c)(a) disable or block the client website; and
(c)(b) remove all data and or information located on it.
(d) BIZ-LYNX shall retain the sole discretion as to whether any data and/or information removed is:
(d)(a) deleted from existence in its entirety after 45 days and destroyed; or
(d)(b) held for such longer period to enable the client, at its expense and subject to payment of all monies owing to BIZ-LYNX, to collect the data and or information.
(e) In the event of a termination or suspension, BIZ-LYNX may post such notice in respect of the non-availability of the client website as it deems fit.
13. Managed Services
(a) Where the services provided by BIZ-LYNX Technology are “managed services”, the client grants a lien and charge over all the client’s hardware, sfotware, equipment, data and property associated with the services provided.
(b) The client will not permit access, transfer of control, modification or service by any third party without prior approval in writing from BIZ-LYNX Technology.
(c) The client will not attempt to and/or restrict access to any network, device or equipment under service by BIZ-LYNX Technology.
14. Entire Agreement
This agreement forms the entire agreement between BIZ-LYNX Technology and the buyer and the buyer acknowledges that no warranty, express or otherwise, except as specifically provided for herein forms part of this agreement save and except to
the extent set out in the varied payment terms and which varied payment terms also form part of this agreement. No oral explanation or information provided by any party to this agreement to another shall affect the meaning or interpretation of this document or constitute any collateral agreement, warranty or understanding between any of the parties to this agreement.