![]() |
Westcon Group Pty Limited - Terms and Conditions of Sale
1. Applicability. These terms and conditions of sale ('Terms and Conditions') apply to all sales of products and services ('Products') by Westcon Group Pty Limited ('Westcon') to you ('Customer'). Customer will be deemed to have accepted the Terms and Conditions by sending a purchase order to Westcon. Westcon acceptance of Customer's purchase order is conditioned upon Customer's acceptance of the Terms and Conditions, without addition or modification. In the event that Customer's purchase order is deemed to be an offer, Westcon's acknowledgement or performance of the purchase order is conditioned upon Customer's acceptance of the Terms and Conditions, without or modification and the Customer's acceptance of delivery without objection constitutes acceptance of the Terms and Conditions, without addition or modification.
2. Order and Shipment. Customer will order Products by sending a complete purchase order to Westcon. Westcon may accept or reject the purchase order for any reason. Once a purchase order has been placed on Westcon, Customer cannot cancel that purchase order. Westcon will not be bound by any terms or conditions set forth on the Customer's purchase orders. Unless otherwise agreed in writing, delivery will be made in accordance with Westcon shipping policy on the date of shipment. Insurance coverage, transportation costs and all other expenses applicable to shipment of the Products from Westcon to Customer's identified delivery place will be the responsibility of Customer. Customer must submit a claim to Westcon, in writing, within forty-eight (48) hours after delivery, of any claimed shortages or rejections. Failure to give such notice of a claim will be deemed an acceptance in full of any such delivery. Approval of any short shipment claim is in Westcon sole power and discretion. In the event that Westcon grants the short shipment claim, Westcon will replace the lost or damaged Product or issue a credit adjustment, in its sole discretion. In the event that Westcon does not approve the claim, Customer will pay the total invoice.
3. Customer's Obligation required by the Manufacturer. If required by the manufacturer or a service provider, Customer warrants it has obtained and is in compliance with any terms and conditions required by the manufacturer or service provider in order to authorise the Customer to purchase the Products from Westcon, for the Customer to carry out marketing support and to use such Products for internal use. The Customer will keep accurate records for five (5) years, or for a longer period if required in accordance with the applicable manufacturer. Westcon will be entitled, with prior notice, to audit Customer's compliance with the Terms and Conditions. If Customer does not comply with manufacturer's terms and conditions, Customer must refund or reimburse Westcon any monies owed as a result of the non-compliance by the Customer or, if available, Westcon may offset any amounts due to Customer. Customer has no authority to create any obligations on behalf of the manufacturer or Westcon. Customer will indemnify Westcon from any liability for any such obligations created by Customer.
4. Personal Property Securities Act 2009 or equivalent legislation (PPSA). If Westcon already has a registered security interest in products it supplies to Customer that security interest is continued under these Terms and Conditions. Otherwise, Customer grants Westcon a security interest in all Products that Westcon supplies to Customer together with all proceeds, whether or not those products have become accessions to other goods, sold, processed or commingled into or mixed with other Products, owed by Customer now and in the future. Customer consents to Westcon registering a security interest under the PPSA (or equivalent legislation in the country that Customer is registered). Customer will do everything possible to enable Westcon to register a security interest under the PPSA (or equivalent legislation in the country that Customer is registered) including providing any information necessary to enable registration of a priority security interest such as a Personal Money Security Interest (PMSI) or equivalent, and will advise Westcon immediately, in writing, of any changes to that information. Customer will grant a PMSI, or equivalent, in priority to all other creditors in favour of Westcon, and in all goods that are supplied from time to time as security for Customer's obligations to Westcon. Where Products supplied to Customer have become mixed with similar goods supplied by other third party, Customer grants Westcon a security interest in the mixed goods to the value of the goods in the mixture that Westcon has supplied to Customer but which have not yet been paid for.
Customer waives any rights pursuant to sections of the PPSA, or equivalent, to receive any notification or verification statement/s relating to the security interests in the Products. Customer waives or excludes such sections of the PPSA, or equivalent, as Westcon may require, subject to those sections being capable of exclusion.
Customer will supply to Westcon, within 2 business days of its written request, with copies of all security interests and authorise Westcon, as its agent, to request information from any secured party relating to any security interest which is held by them. Westcon, at its option, may require Customer to pay all reasonable costs, including legal costs on a solicitor client basis, associated with the registration, maintenance, enforcement, discharge or amendment of any registered security interest by Westcon, whether or not such change was initiated by Customer.
If Westcon repossess any Products under this agreement, it may retain those products or dispose of them without notice to Customer and, after deducting reasonable costs of sale, credit any surplus, by way of setoff against any sums owing to it. Westcon shall not be obliged to furnish Customer with a statement of account or to pay to any other person any sum in excess of the total amount owed by Customer at the time its account is credited. Westcon will not be obliged to reinstate this agreement or resupply any repossessed Products or goods to Customer.
5. Property and Risk.
a) Risk of loss will pass to Customer upon delivery by Westcon to Customer's representative at Westcon point of shipment, or on delivery by the carrier to Customer's identified delivery place and Customer will insure the Product until sold by the Customer.
b) Property in and ownership of the Product (excluding software) will not pass from Westcon to the Customer until the Customer has paid for the Product in full and has discharged any and all indebtedness to Westcon on any account whatsoever, including all applicable GST and other taxes, levies and duties. Title to software is not transferred at any time.
c) Until Property passes to the Customer:
1. The Customer will hold the Product as fiduciary and bailee for Westcon;
2. The Product must be stored separately and in a manner to enable it to be identified and cross referenced to particular invoices;
3. Westcon, its employees or agents, are entitled to enter the Customer premises between 9.00am and 5.00pm on any business day to inspect the Product;
4. Unless otherwise notified in writing by Westcon and subject to clause g, the Customer is authorised to sell the Product in the ordinary course of the Customer's business; and
5. The proceeds of Products sold by the Customer are to be held in trust for Westcon until the invoice relating to those Products has been paid in full.
d) If payment is not made by the Customer to Westcon on the due date, the Customer must deliver the Product to Westcon on demand. If the Customer does not comply with such demand, Westcon, its employees or agents are entitled:
1. To enter the premises at any time to do all things necessary in order to take possession of the Product and the Customer:
a. Must procure the consent of all persons having an interest in the premises where the Product is situated to entry into the premises by Westcon, its employees or agents; and
b. Indemnifies Westcon against any claim, loss, liability, cost and expense that may be incurred or sustained by Westcon, its employees or agents as a result of entry into those premises where the Products are situated; and
2. With or without taking possession of the Product sell it as Westcon sees fit; and
3. The Customer must pay to Westcon the costs and expenses incurred by Westcon of any legal advisers on a solicitor/client basis, mercantile agents and other agents acting on Westcon's behalf in respect of the enforcement of these terms and conditions, or recovery or attempted recovery of either the money owing by the Customer to Westcon or possession of the Product.
e) Until property passes to the Customer, the Product is not to be affixed to any of its premises and the Customer must ensure that the Product may be removed from those premises without causing damage of any kind to the premises.
f) The Customer's right to hold and sell the Product will immediately cease if an administrator or controller within the meaning of Section 9 of the Corporations Act or similar officer is appointed to all or any assets or undertaking of the Customer or an order is made or resolution passed for the winding up of the Customer or the Customer is deregistered or if Westcon believes at its own discretion and without having to provide any reason that its interests are or are likely to be in any way imperilled by an act or omission on the part of the Customer or any of its servants or agents or any one or more of its creditors. In any such case, and without the need for notice or demand by Westcon, the Customer acknowledges any subsequent sale or purported sale of the Product will not be in the ordinary course of the Customer's business and the proceeds of any Product sold in such circumstances will be held in trust for Westcon by the administrator, controller, receiver, liquidator or similar officer as the case may be, or if there is no such officer by the Customer.
g) Product invoiced to the Customer and held by Westcon for any reason shall be held at the Customer's risk and expense.
h) This section 5 is not intended to create a charge and shall be read down to the extent necessary to avoid creating a charge.
6. Price, Payment and Title. Prices for Products will be set forth in Westcon then applicable pricing arrangement, which do not include applicable taxes, as 30 days following date of invoice, except that cash on delivery (COD) accounts are due prior to delivery. Title to the product does not pass to Customer until full payment has been received by Westcon. Payments may be made in Bank Cheque, Company Cheque, or by funds transfer to Westcon Bank Account. Where payment is by Cheque, payment is not deemed to have been received until the Cheque has been cleared by the bank. Westcon reserves the right to withhold shipment of any part of an order or to require pre-payment for any given shipment if Customer does not make timely payment.
Customer will pay all applicable taxes, duties, licenses, excises and tariffs ('Taxes') levied upon the sale, purchase or delivery of Products. Westcon reserves the right to require prepayment for the whole or part of the price of the goods or services before accepting any order or part order.
If payment has not been made in full by the due date, Westcon may charge Customer interest compounding monthly on the unpaid overdue balance at the rate of 15% per annum and Westcon may charge costs (including collection costs and legal costs on a solicitor-client basis) and may suspend delivery of further goods or performance of further services.
7. Returns and Warranty Assistance Service. Westcon has absolute discretion to accept Customer returns and/or provide warranty assistance service. Subject to Westcon's approval, Customer may return Products purchased from Westcon and receive a credit of the paid price, subject to the following: (a) the Product for return is logged on Westcon website; (b) the Product is returned to Westcon within ten (10) days of the invoice date; (c) Westcon determines, in its sole judgement, that the Product is cancellable; (d) the list price of the Product has not decreased from the price paid; (e) the Product is new and Unused; (f) the Product is in its original package, which has not been damaged or altered; and (g) Westcon determines, in its sole judgment, that Customer is in good standing. Products satisfying all the foregoing requirements may also be returned subject to a Westcon restocking fee.
Products purchased from Westcon that are determined to be defective within thirty (30) days of the invoice date, may be returned to Westcon for assistance in processing a manufacturer's warranty, provided that the product is covered by a manufacturer's warranty and the Customer is determined, in Westcon sole judgment, to be in good standing.
Upon satisfaction of the foregoing, Westcon will issue a return material authorisation and advance ship the replacement Product under a new Customer purchase order. All returned products must be shipped by Customer FOB destination and received by Westcon within ten (10) days of the date of shipment of the replacement Products. Notwithstanding the foregoing, Westcon makes no warranty or representations regarding the Products. All other returns of Products are subject to Westcon's prior approval and applicable fees.
Goods are subject to their manufacturers' warranties only. Where possible, Westcon will pass on the benefit of those warranties to Customer or its customers, as the case may be, without itself being directly liable to Customer.
Customer is responsible for the cost of returning goods to Westcon for warranty service and Customer may be responsible for additional costs including (but not limited to) freight and travel.
Subject to manufacturer's warranty policy, warranty may be voided by unreasonable use, damage or misuse (including problems caused by misuse or damage after the goods have left Westcon's care), negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorised repairs, modifications or the addition of hardware, software or consumables not supplied by Westcon.
Customer will not be entitled to the benefit of any warranty if any Westcon invoices are overdue.
8. Disclaimer and Limitation of Liability. Westcon makes no warranties of any kind with regard to the Products. Westcon disclaims all representations and warranties, express or implied, as to the Products, including, without limitation, any implied warranty of merchantability, intellectual property or fitness for a particular purpose. In no event will Westcon be liable for any loss, damage or cost for breach of warranty. Westcon will not, in any event, be liable for any loss of revenue, profit, use of data, interruption of business or for special, indirect, consequential, incidental, exemplary or punitive damages, however caused and regardless of the theory of liability, arising out of the use of or inability to use the product, or in any way connected to this agreement, even if Westcon has been advised of such damages. The foregoing limitation of liability whether any claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, or otherwise. In no event will Westcon liability to Customer exceed the purchase price paid for the product that is the basis for the claim.
9. Intellectual Property. Unless otherwise provided in writing, Westcon is not the licensor and Customer acquires a licence directly from the manufacturer or the manufacturer's authorised licensor. Customer acknowledges that the Products, including software, and any other intellectual property rights, are subject to any rights is third party, such as patents, copyrights and/or user licences.
10. Credit Adjustments and Refunds. Credit Adjustments may be available to Customer pursuant to Westcon's applicable policies and programmes which may include, without limitation, Product returns, co-op advertising, rebates and allowances ('Credit Adjustments'). Customer may apply Credit Adjustments to their Westcon account balance. Refunds will be issued, upon request by Customer, only in the event of an overpayment. No other customer will be entitled to receive a refund.
11. Export Restrictions. Customer will obtain all licenses, permits and approvals required by any government and will comply with all applicable laws, rules, policies and procedures relevant to the Product or the territory that the Customer is operating in including but not limited to the U.S, UK and Australian Government. Customer will indemnify and hold harmless Westcon for any violation or alleged violation by Customer of such laws, rules, policies and procedures.
12. Confidential and Proprietary Information. Each party acknowledges that all non-public information, disclosed as a result of performance of these Terms and Conditions, including without limitation, customer lists, pricing information or other customer-specific or marketing information, whether in tangible or intangible form and however conveyed shall be deemed 'Confidential and Proprietary Information'. Each party agrees not to disclose or use such information except, (i) in connection with these Terms and Conditions, or (ii) as required by law to do so. Each party agrees to promptly notify the other party of any subpoena or court order compelling disclosure.
13. Data Protection and Privacy. In relation to any "personal information" (that is, any information or opinion about a natural person, including as that term is defined in the Privacy Act 1988) in the data provided to or accessed by Westcon or any third parties who contract with Westcon or with Westcon's contractors in connection with the supply of the Product (together, "Westcon and third party contractors"), Customer warrants that it has taken all steps necessary, and has ensured that its agents, contractors and end users have taken all steps necessary (including providing privacy statements to and obtaining privacy consents from relevant individuals) to ensure that Westcon and third party contractors are able to access and process (both within and outside Australia) the personal information in compliance with all applicable legislation, principles, industry codes and policies by which Westcon and third party contractors are bound (including, without limitation, the Privacy Act 1988). Customer warrants that all personal information and any other information that Westcon and third party contractors cannot legally access have been excluded from any data provided to Westcon and third party contractors. Customer will provide Westcon with evidence of such steps taken (including copies of privacy statements and consents) upon reasonable request. Customer agrees to take all reasonable steps requested by Westcon or third party contractors to assist them in compliance with all applicable legislation, principles, industry codes and policies by which Westcon or third party contractors are bound (including, without limitation, the Privacy Act of 1988), and Customer will take no action that would cause Westcon or third party contractors to breach their obligations under the Privacy Act of 1988 or any other applicable legislation or regulation. Customer indemnifies and holds Westcon and all third-party contractors harmless for any and all losses or damages resulting from any breach of this Data Protection and Privacy paragraph. Westcon may use any information on the credit application for purposes including, but not limited to, credit, administration, and marketing. Customer authorises any person or company to provide Westcon or Westcon's agent/s such information as necessary in relation to Customer's credit or relevant to this information. Customer authorises Westcon to supply any details relating to the Customer to a third party for the purposes accessing the Customer's credit application and managing the Customer's account.
14. Errors or Omissions. Clerical errors or omissions, whether in computation or otherwise in any quotation, acknowledgement or invoice, shall be subject to correction by Westcon.
15. Use of Products. Products are not authorised for use in nuclear, critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Customer uses or sells the Products in any of the above applications, it does so at its own risk and indemnifies Westcon of any liabilities or costs resulting from such use.
16. Statement of Debt. A certificate signed by a director, secretary, financial control or credit manager of Westcon shall be evidence of the amount of indebtedness of Customer to Westcon at that time.
17. General. The Terms and Conditions will be construed in accordance with the laws of the New South Wales, other than conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions. The failure of either party to insist upon strict performance of any of the provisions of the Terms and Conditions will not be deemed a waiver of any breach or default. Each of the parties represent it has the authority to enter into and sign these Terms and Conditions. Any notice given to either party will be in writing and effective by transmission via facsimile and regular mail to the address indicated in the Credit Application or as advised in writing by the party. Westcon will be entitled to receive all collection costs, including solicitors fees and costs, incurred as a result of the enforcement of any provision of hereof or collection of any sum due by from Customer. In any provision of these Terms and Conditions are unenforceable as a matter of law, all other provisions will remain in effect. Either party may sign these Terms and Conditions. Westcon will not be liable for any delay or failure in performance whatsoever due to any cause or circumstances outside the reasonable control of Westcon including, but not limited to, acts of God, earthquakes, shortage of supplies, transportation difficulties, labour disputes, riots, war, fire, epidemics and similar occurrences. The Terms and Conditions may be amended or modified by Westcon. These Terms and Conditions constitute the entire agreement between the parties as to the Sale of Products and supersede all prior or current written or oral statements, representations, negotiations, agreements and understandings to the extent that prior or current agreements modify or are inconsistent herewith. Prior or current agreements that do not modify and are consistent with these Terms and Conditions are made a part hereof.
|
|