To the maximum extent permitted by law, all dealings between TKM9 group ABN 21 620 069 445 and/or any of its related bodies corporate (tkm9) and any client (Client) relating to the supply by tkm9 of any products or services, including any Statement of Work (SOW) are subject to the following Conditions of Sale (these Terms or this Agreement) unless otherwise agreed in writing.
1. Payment: Payment will be made in accordance with any signed proposal document, SOW or tax invoice as provided by tkm9. Terms are detailed on the invoice. If no terms are detailed, payment is due within 30 days of the date of invoice.
2. Interest: Interest may be charged by tkm9 at its election on overdue payments at the prevailing 90 day bank bill rate nominated by the National Australia Bank from time to time, plus an additional 2%.
3. Set off: tkm9 can set off any amount which the Client or any of its related entities owe to tkm9 under these Terms or any related order or contract against any amount which tkm9 owes to the Client or any of its related entities (whether under these Terms, related order, contract, SOW or otherwise).
4. Supply: TKM9 will supply to the Client the goods and/or services as described in any related contract, proposal, quote or SOW (Work Product). If the Work Product includes any specified component then TKM9 may substitute any component of the Work Product s or any part of any component of the Work Product prior to delivery without consultation with the Client and may in any respect modify the Work Product if, in the reasonable opinion of TKM9, the substitution or modification will not adversely or materially affect the performance or capacity of the Work Product and will not alter the configuration of the Work Product in any material respect. [to discuss]
5. Preparation of site: The Client shall at its own expense prepare the site/s as detailed on any proposal, quote, order or SOW (Site), In doing so, the Client shall comply with any directions or specifications issued by TKM9. The Client shall ensure the supply at the Site of adequate electrical current, electrical and mechanical fittings, and appropriate environmental conditions. TKM9 will, if requested by the Client, assist is providing information to the Client to enable the Client to prepare the Site. TKM9 will, if requested by the Client and at the Client’s expense, inspect the Site prior to delivery for the purpose of providing an opinion to the suitability of the Site.
6. Title in the Work Product will pass to the Client on payment in full. Risk of loss or damage to the Work Product passes to the Client upon delivery of the product to the Site.
7. Delay: In the event that the delivery or installation of the Work Product is delayed due to the act or omission of the Client, or there is a material change in the delivery of the Work Product, then TKM9 acting reasonably, will be entitled to charge on a time and materials basis in respect of additional resources utilised in order to fulfil its obligations under this Agreement.
8. Personal Property Securities Act 2009 (Cth) (PPSA) Registration: The Client agrees that Tkm9 will have a Purchase Money Security Interest (as defined in the PPSA) in any products or other equipment supplied to the Client under these Terms or any related order or contract. Tkm9 may register any security interest contemplated by these Terms and/or any related order or contract on the PPS Register (as defined in the PPSA). The Client must supply Tkm9 with any information and take any steps Tkm9 requires for the purposes of effecting and enforcing such registration. The Client irrevocably and unconditionally waives its right to receive any notice from Tkm9 in connection with the registration. The Client will not allow a security interest to be created or registered over the products in priority to the security interest held by Tkm9. The Client agrees that any action taken by Tkm9 in relation to the Client’s security interest in the products is at the cost of the Client. The parties agree that for the purposes of section 115 of the PPSA, nothing in sections 95, 121(4), 125, 130 (to the extent that it requires Tkm9 to give any notice to the Client), 132(3)(d), 132(4) and 135 of the PPSA will apply to any collateral arising from or in connection with these Terms and/or any related order or contract. Notwithstanding section 275 of the PPSA, the parties further agree to keep confidential the contents of these Terms and related material.
9. Limitations of liability: To the maximum extent permitted by law, Tkm9's liability: i) for breach of any of these Terms and/or any related order or contract; ii) in tort (including for negligence) is limited, at Tkm9's option, to: A) the replacement or repair of the goods; B) the supply of equivalent goods or services; or C) the cost of replacing or repairing the goods or of acquiring equivalent goods or services. Any claim by the Client for short or wrongful delivery of products must be notified to Tkm9 in writing within 14 days of delivery or will be taken to have been absolutely waived. To the maximum extent permitted by law, neither party will be liable for any loss of profit, loss of goodwill, loss of opportunity or any, special, exemplary, punitive, indirect or consequential loss or damage incurred by the other party either directly or indirectly in connection with these Terms and/or any related order or contract.
10. Excluded terms: To the maximum extent permitted by law, all terms, conditions, warranties and representations expressed or implied by statute, common law, equity, trade, custom or usage are expressly excluded.
11. Suitability of products etc: These Terms and any order or contract between Tkm9 and the Client shall not be or not be deemed to be a sale by sample. Any description of the products is given by way of identification only and does not constitute a sale by description. Neither Tkm9 nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing, whether as to the fitness of the goods for any particular purpose or any other matter. [to discuss]
12. Placement of Orders: If a dispute arises in connection with any order, the internal records of Tkm9 will be conclusive evidence of what was ordered. Each order placed shall be deemed to be a representation by the Client, that it is and will remain in the future solvent and able to pay all of its debts as and when they fall due.
13. Products and Services: Tkm9 is not responsible or liable for any products or services to the extent that; i) they are made or performed to designs, drawings, specifications and/or procedures etc or with any materials which are provided or approved by or on behalf of the Client and; ii) are used, stored, handled or maintained incorrectly or inappropriately after delivery to the Client. The Client must ensure that all products and services comply with all applicable legal requirements and regulatory standards before use or on-sale. Tkm9 may update, modify, alter or make substitution for any of its products or any component in or used in forming any part of any products. It is the Client's sole responsibility to ensure that materials, designs, drawings, specifications, procedures etc provided by or on behalf of the Client, to be used by Tkm9 in meeting any orders, are correct, appropriate and comply with all applicable laws, regulations and standards. [to discuss]
14. Other Terms and Conditions: No terms and conditions sought to be imposed by the Client (ie Client conditions of purchase) shall apply to Tkm9.
15. Recovery Costs: A party will pay any costs and expenses incurred by the other party or its solicitors, legal advisers, mercantile agents and others acting on the other party’s behalf in respect of anything arising from these Terms or any dealings with a party.
16. Default: Upon the Client's breach or default of any of these Terms, related order or contract with Tkm9, Tkm9 may, without prejudice to its other rights; i) retain all monies paid by the Client; ii) cease further performance of products and services, iii) seek to recover from the Client all direct loss and costs incurred; iv) take possession of any products not fully paid for and; v) otherwise suspend its obligations under or terminate these Terms and/or any related order or contract.
17. Insolvency: If the Client is involved in any act of insolvency, then Tkm9 may deem this to be a default under these Terms and may suspend its obligations under or terminate these Terms and/or any related order or contract without prejudice to any rights it may have. An act of insolvency includes bankruptcy, liquidation, receivership, administration, failure to comply with a statutory demand, a suspension of payment of debts or the bringing of a winding up application which is not dismissed within 7 days.
18. Indemnity: The Client indemnifies Tkm9 against any claim, loss, damage, liability, cost or expense that may be incurred or suffered by Tkm9 arising from or in connection with any breach or default of the Client of these Terms, any related order or contract or the Competition and Consumer Act 2010 (Cth).
19. Force Majeure: A party will not be in default or breach of these Terms or any related order or contract, or will not otherwise be liable to the other party, for any delay or failure to perform arising from an event of Force Majeure. An event of Force Majeure means an event or cause beyond the reasonable control of the affected party and includes any strike, lock out or industrial action; acts of God, lightening, storm, explosion, flood, fire, landslide, bush fire or earthquake; act of public enemy, war, terrorism or sabotage; the effect of any applicable laws, orders, rules or regulations of any government or other competent authority; and embargo, inability to obtain any essential equipment or materials, power or water shortage or lack of transportation.
21. Warranties and acknowledgement: The Client represents and warrants to Tkm9 that at all times: i) the Client is duly authorised to permit Tkm9 to use the trade marks, copyright material and any material the Client specifically requests Tkm9 to use on or in connection with the products; and ii) Tkm9's use of the trade marks, copyright material and any material the Client specifically requests Tkm9 to use on or in connection with the products will not infringe the trade mark, copyright or other intellectual property rights of any party and will not breach any statute, regulation or rule.
22. Artwork and Experimental Orders etc: The Client agrees to pay for: i) any artwork, designs, stereos, blocks engravings etc or modifications thereto etc involved in any order, in addition to the agreed prices and; b) any experimental or preliminary work or product agreed to be provided by Tkm9. The Client agrees that all intellectual property rights in these items will be held by Tkm9 or its nominee. [to discuss]
23. Contracts and Quotations: Any contract, order, proposal or quotation between the parties in relation to Tkm9's supply of any products or services will be deemed to incorporate these Terms by reference, unless Tkm9 otherwise agrees in writing.
24. Deposits: The Client agrees to pay Tkm9 any deposit required by Tkm9 as a condition of acceptance by Tkm9 of a purchase order.
25. Notice: The Client agrees that it will be deemed to have notice of and be bound by any change to these Terms immediately once opted by Tkm9 and either notified to the Client directly or displayed by Tkm9 on its website.
26. Waiver: Failure by Tkm9 to insist on strict performance of any term, warranty or condition of these Terms or any related order or contract will not be taken as a waiver of it or of any rights Tkm9 may have and no waiver will be taken as a waiver of any subsequent breach of any term, warranty or condition.
27. Variation: Any variation of these Terms will not bind Tkm9 unless approved in writing by an authorised representative of Tkm9.
28. Severability: Any part of these Terms being a whole or part of a clause, shall be capable of severance without effecting any other part of these Terms.
29. Jurisdiction: These Terms shall be governed and construed in accordance with the laws of Victoria. Each party submits to the jurisdiction of courts exercising jurisdiction there.
14. INTELLECTUAL PROPERTY
14.1 TKM9 retains ownership over any, and all, intellectual property (including copyright, trademarks, business names, know-how) including any updates or enhancements to the Licensed Software it owns or has a right to use prior to the date of this Agreement or that it has created during the course of supplying the Work Product to the Client but excluding any customised elements, whether created by TKM9 or the Client, or both of them, and whether or not involving a modification of TKM9’s methodologies, work products, proposals, supporting tools and techniques and original source code which are created during the course of this Agreement exclusively for the Client, such as, by way of example only, display content and display layout (“Customised Elements”) and TKM9 assigns, or assigns upon creation, without further act being necessary, to the Client, all intellectual property comprised in the Customised Elements. This does not include any hardware used in the Work Product; all hardware will remain the property of TKM9 unless otherwise agreed in writing.
14.2 TKM9 grants the Client a non-exclusive, non-transferable (without TKM9’s prior written consent) licence to use the intellectual property comprised in the Work Product however the exercise of such licence shall be conditional upon TKM9 having received all monies due to it under this Agreement.
15. HEALTH & SAFETY
Upon delivery, the Client agrees to assume responsibility for complying with all applicable health and safety regulations in relation to the reception, storage, handling and use of the Work Product and where TKM9 supplies information to the Client in relation to the potential hazards it will bring such information to the attention of the Client’s staff and users of the Work Product.
This Agreement shall continue until terminated by breach. If either party considers the other party to be in breach of a term or condition of this Agreement, then it may give notice of that breach to the other party and if the other party does not remedy the breach within 14 days of receiving notice of the breach, then the party giving the notice shall be entitled to terminate this Agreement by written notice.