Terms and conditions
1. Supply of Services and Products.
365mesh Pty Ltd (ABN 44 639 499 942) trading as 365mesh, agrees to supply professional services support and break-fix support (‘Support”), services (“Services”) and/or goods (‘Products”) to the Customer on these standard Terms and Conditions of any relationship between 365mesh and the Customer.
365mesh will provide a quotation for the supply of all Products and Services. These quotations are valid for acceptance only for 45 days from their issue date, unless stated otherwise on the quotation.
Payment terms are strictly 14 days from the date of invoice. Products will be invoiced on delivery. Support and Hardware Maintenance agreements will be invoiced at the commencement of each Support agreement. Services will be invoiced at the end of each month and on completion or as otherwise prescribed in the documents describing the Services to be supplied. Quoted prices based on a stated exchange rate will be adjusted on invoicing to take account of any exchange rate fluctuations. Adjustments will be based on the exchange rate quoted by the ANZ Bank at the close of business on the day before the date of invoice. Any discount which 365mesh may have granted to Customer is forfeited by 365mesh if payment is not made to 365mesh by the due date. Payment must not be withheld pending the settlement of any claims or disputes late payment. Will incur a late payment admin fee of $50.00 AUD and interest at the rate of 2.5% per month calculated on a daily basis. This shall be payable on any monies outstanding under the Contract from the date payment was due until the date payment is received by the Company. In the event that any payment becomes overdue for equipment or services ordered, or in the company’s opinion the customer will be unable to meet its payments as they fall due, the company shall be entitled to cancel all or any part of any order of the customer that remains unperformed.
4. Signed Contract.
Unless a quotation or a purchase order issued in respect of this quotation specifies that it is subject to a separate contract signed by the parties, then these terms and conditions apply to this quotation and any purchase order issued in respect of it.
365mesh Pty Ltd (ABN 44 639 499 942) (“365mesh”) agrees to supply goods (“Products”) and/or services (“Services”) to the Customer on these standard terms and conditions (“Terms”)
6. Purchase Orders.
Purchase orders for Products or Services constitute an offer by the Customer and may only be accepted by 365mesh in writing. Any amendments to purchase orders for Products or Services must be approved by 365mesh in writing to be effective. Only these Terms (no other terms and conditions which may be attached to or incorporated in a purchase order) form part of the agreement between the parties. Acceptance of a purchase order will not be acceptance of any such terms or conditions.
365mesh makes no warranty in relation to the Products or Services other than as contained in these Terms or as prescribed by a law which cannot be excluded or in the case of Products, as provided by the Products’ respective manufacturers as made known to the Customer in the documents supplied by 365mesh or the manufacturer or as otherwise published or made known to the Customer. Defects in Services reported to 365mesh within 14 days of delivery of the Service will be rectified by 365mesh at no charge to the Customer. 365mesh will not provide claimed warranty services for defects or deficiencies in Products or Services which are caused by: (a) external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge or spike; (b) the use of a Product for other than its intended purpose; (c) the use with or connection of a Product to items not approved by 365mesh; (d) the performance of maintenance or attempted repair by persons other than 365mesh or as authorised by 365mesh;(e) changes made to the deliverables created by performance of the Services or to the operating environment; (f) the relocation of Products by the Customer; or (g) any configuration or reconfiguration by the Customer of the Products or other equipment with which the Products interface.
Any amount not paid on the due date for payment will carry interest from that date until payment is made in full at the rate being 2 percentage points above the overdraft rate charged on overdraft accounts over $100,000 by the ANZ Bank from time to time.
365mesh will use its reasonable endeavours to deliver Products or Services to the Customer by the date agreed but will not be liable for any delays in delivery caused by matters beyond its control. Freight charges incurred by 365mesh in delivering Products to the Customer will be invoiced to the Customer at cost unless quoted otherwise.
Unless the Customer gives 365mesh written notice of any aspect of a deliverable which is alleged by the Customer to be otherwise than in accordance with these Terms or any applicable specifications, within 7 days of the date of delivery of that deliverable, the Customer is deemed to have accepted that deliverable on delivery. Where the Customer puts a deliverable to commercial use, it is deemed to have accepted that deliverable on the first day of such use, whether or not a notice of the kind contemplated by this clause is given to 365mesh as required.
Products returned will only be credited to the Customer’s account if the return is authorised by 365mesh and the Products are in the same condition as delivered by 365mesh and only if received by 365mesh within 14 days of delivery. 365mesh reserves the right to charge the Customer for any costs or losses incurred by 365mesh if Products which are not faulty are returned or returned without authorisation, returned later than 14 days from delivery or in a different condition to the condition the Products were in when delivered by 365mesh. 365mesh will use its best endeavours to minimise such costs and losses.
Risk of loss, theft, damage, deterioration or destruction of Products passes to the Customer upon the earlier of: (a) delivery to the Customer; (b) the taking of possession by the Customer; and (c) the delivery to any carrier contracted to the Customer for delivery to the Customer.
Until the Products have been paid for in full, they remain the property of 365mesh. If the Customer fails to pay any moneys to 365mesh when due, 365mesh may immediately without notice or demand enter upon the Customer’s premises and take possession of the Products. This right is without prejudice to any other rights that 365mesh may have.
14. Intellectual Property.
The Customer acknowledges that, unless otherwise agreed in writing, all intellectual property rights attached to the Products or arising out of the provision of Services are and will remain the property of 365mesh (or its supplier, where such rights are owned by that supplier). Software will be licensed to the Customer of the relevant licence agreement provided with the Product or as otherwise agreed between 365mesh and the Customer in writing. Any rights to be conferred to Customer will only commence on payment of all charges payable in connection with those rights.
365mesh and the Customer agree that they will keep at all times as strictly confidential any confidential information that is disclosed or provided by one party to the other. In this clause, “confidential information” means information in any form but does not include information that is already in the public domain at the time that it is disclosed or becomes part of the public domain otherwise than as a result of an unauthorised disclosure by 365mesh or the Customer.
Where the Customer:
(a) makes default in any payment or breaches any of these Terms;
(b) becomes unable to pay its debts as and when they fall due; or
(c) commits an act of bankruptcy or, being a company, enters into liquidation or provisional liquidation whether compulsory or voluntary or compounds with its creditors generally or has a receiver or receiver manager or administrator appointed over all or part of its assets or passes a resolution for winding-up or a petition is presented for its winding-up, 365mesh may without prejudice to any of its rights or remedies under these Terms or otherwise by notice to the Customer:
(a) suspend further supply and require payment in advance for future supply;
(b) recover possession of any Product for which payment has not been made;
(c) terminate all or any purchase orders for Products or Services which have been accepted by 365mesh;
(d) claim immediate payment of all moneys due by the Customer in respect of all Products and/or Services which will then be immediately due and payable notwithstanding the due date or dates for payment or any terms agreed by 365mesh; and/or
(e) continue to enforce its rights and recover from the Customer such payments and any other amounts owing as and when they fall due.
17. No Representations.
The Customer acknowledges that 365mesh has not made any warranty or representation, express or implied, in relation to the Products or the Services, including whether they are suitable for a particular purpose (whether such purpose was made known to 365mesh or not), unless provided in writing.
18. Limitation of Liability.
365mesh will not be liable to the Customer for any indirect or consequential damages including loss of profits, revenue, data or use arising out of or in relation to the supply of Products and/or Services, even if 365mesh knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute. Except in relation to liability for personal injury (including sickness and death), or damage to tangible property, 365mesh’s liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Products and/or Services pursuant to these Terms or in respect of a failure or omission on the part of 365mesh to comply with its obligations under these Terms is, in aggregate, limited to an amount equal to the amount paid by the Customer to 365mesh under the relevant purchase order.
19. No Implied Terms.
To the fullest extent permitted by law, the parties agree to exclude any terms which would otherwise be implied into these Terms by any statute. The liability of 365mesh for a breach of a condition or warranty implied into these Terms by the Trade Practices Act, 1974 is limited at the option of 365mesh:
(a) if the breach relates to goods, to the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; and (b) if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again.
20. Cyber-Security Protection and Remediation. 365mesh is not liable for Customer breaches through the course of providing cyber protection consultation, design and services delivery. 365mesh holds cyber-security insurance to assist in the protection of our business and brand from loss, however, this does not cover Customer claims, nor potential losses in case of breach. 365mesh recommends Customers hold current and valid Cyber Insurance policies to mitigate this issue. 365mesh services are offered on a ‘Best Effort’ basis.
Any variation to these Terms must be in writing. Variations to any of the Services agreed to be supplied will be charged by 365mesh at its then current rates for those additional services, unless otherwise agreed in writing.
Notices must be in writing and sent by mail, hand delivery or transmitted by facsimile to the address or facsimile number of the receiving party and are deemed delivered, in the case of:
(a) hand delivery, on delivery; (b) posting, three days after dispatch; and (c) facsimile, on completion of complete and legible transmission. No leniency, indulgence or extension of time granted by 365mesh to the Customer will prejudice any of 365mesh’s rights in any way or constitute a waiver of any of 365mesh’s rights. If any of these Terms are for any reason declared to be or become unenforceable, invalid or illegal, the remaining Terms will remain in full force and effect. These Terms are governed by the laws of New South Wales and the parties agree to submit to the nonexclusive jurisdiction of the courts of New South Wales.
23. Taxes and GST.
The amount payable to 365mesh (“the Price”) is inclusive of existing taxes, duties and government charges imposed or levied in Australia in connection with the supply of the Products and Services. The Customer is liable for any new or varied taxes, duties or charges imposed subsequent to 365mesh quotation or proposal or to this agreement in respect of the supply of the Products and Services. 365mesh will issue a valid tax invoice where GST is to be recovered.