Terms

TERMS AND CONDITIONS

Interpretation

In these Terms:

·         “Company” means Podium IT Pty Ltd

·         “Customer” means the purchaser of Goods or Services from the Company.

·         “Good’s” means all goods sold and/or delivered by the Company to the Customer.

·         “Services” means all services rendered and/or delivered by the Company to the Customer.

·         “Terms” means these terms and conditions of sale.

 Application

·         These Terms apply to all contracts for the sale of Goods and Services by the Company and may be in addition to a Service Level Agreement (SLA) signed by both parties where relevant.

·         No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless confirmed by the Company in writing.

·         The Customer acknowledges that no employee or agent of the Company has any right to make any representation, warranty or promise in relation to the Goods or Services or the sale of the Goods and Services other than as contained in these Terms.

Prices

·         Prices are determined at the time of order and, prior to payment of the deposit, are subject to change without notice.

 

Payment

·         Payments are to be made to the Company without any deduction or discount other than as stated in these Terms or in the relevant invoice or statement.

·         Overdue accounts will attract an administration fee of $30 each time an invoice reminder is completed until payment is received by the Company.

·         Purchases made on behalf of the Company to third-party suppliers are subject to the Terms of Service of the Podium IT Shop, which can be found here.

·         Where payment terms are not stipulated by a Service Level Agreement between the Customer and the Company, the Company requires the Customer to sign up for a Direct Debit facility with GoCardless. Please see GoCardless General Data Protection Regulation (GDPR) here for reference.

·         Where direct debit is not available and unless stipulated otherwise in the SLA, the Customer will be required to pay all invoices within seven days of the date it receives the invoice. Any customer that has agreed to a direct debit mandate agrees that no changes can be made to the invoice four business days prior to the schedule debit. If changes are required then the customer’s account will be credited after the direct debit accordingly. No funds will be transferred back to the client after payment.

·         The Company expects full payment of services rendered on or by the due date. The Company reserves the right to cease all services or goods if the Customer is unable to settle any outstanding debts.

·         Payment plans can be created by the Company if the Customer is unable to pay by the due date, all payment plans will attract an undetermined interest fee.

  Delivery

·         The Customer must, within five days of being notified of their availability, collect or accept delivery of the Goods and pay the balance of the invoice price.

·         If the Customer fails to collect the Goods or accept delivery within 21 days of being notified of their availability, the Company may terminate this contract, keep the deposit and resell the Goods.

·         The Company also reserves the right to charge the Customer storage on goods not collected or delivered within five days of notification of their availability at the rate of $35.00 per week or part thereof at the discretion of the company.

·         The Company reserves the right to deliver the Goods in whole or in instalments, as well as to deliver prior to the date for delivery and, in such event, the Customer must not refuse to take delivery of the Goods.

·         Any failure on the part of the Company to deliver instalments within any specified time does not entitle the Customer to repudiate the contract with regard to the balance remaining undelivered.

  Title

·         Legal and beneficial ownership of the Goods will not pass to the Customer until such time as the Goods have been paid in full in cash or cleared funds.

·         Unless the Customer has inspected the Goods and given written notice to the Company within two days after collection or delivery that the Goods are not found to be in good order or condition, the Goods are deemed to have been accepted.

Refunds

·         Following acceptance of the quote from the Customer, there will be no refunds unless the product is found to be faulty or not in good working order. If this is the case all refunds or replacements are covered under the manufacturer’s warranty.

Cancellations

·         No order may be cancelled, modified or deferred without the prior written consent of the Company (which is at the Company’s sole discretion). If such consent is given it is, at the Company’s election, subject to the Company being reimbursed all losses, including loss of profits, and paid a cancellation fee (being not less than 20% of the invoice price of the Goods).

 Indemnity, Limitation of Liability & Insurance

·         The Goods are entirely at the risk of the Customer from the moment of delivery to the Customer’s point of delivery or on collection, even though title in the Goods has not passed to the Customer at that time.

·         The Customer must, at its own expense, maintain the Goods and insure them for the benefit of the Company against theft, breakdown, fire, water and other risks as from the moment of delivery to the Customer and until title in the Goods has passed to the Customer.

·         The Company agrees to maintain a reasonable level of business insurance to protect both themselves and the Customer in the event of an incident arising that limits business functions, puts products at risk or causes loss of profits.

·         All statutory or implied guarantees, conditions and warranties are excluded to the extent permitted by law.  The Company does not limit or exclude the application of any provision of any statute (including the Competition and Consumer Act 2010 (Cth) if the Customer is ‘consumer’ as that term is defined in such act) where to do so would contravene that statute or cause any part of this clause to be void.

·         All Goods supplied are covered by such warranties as are specified by the manufacturer and supplied subject to the product standards detailed by the manufacturer.

·         On discovery of any defect in the Goods, the Customer must immediately notify the Company in writing of such defect. The Customer must not carry out any remedial work to alleged defective Goods without first obtaining the written consent of the Company to do so.

·         In no event will either party be liable for any damages if and to the extent caused by the other party’s failure to perform its responsibilities. Despite any other term of this agreement the Company will not be liable for any special, exemplary, punitive or consequential loss or damage (including without limitation, any loss of profit, loss of opportunity and loss of goodwill) incurred by the Customer directly or indirectly in connection with the services.

·         The Customer expressly acknowledges and agrees that it has not relied upon, and the Company is not liable for any advice given by the Company, its employees, agents or representatives in relation to the suitability for any purpose of the Goods.

·         These Terms do not affect the rights, entitlements and remedies conferred by the Trade Practices Act 1974.

·         The Company is not subject to, and the Customer releases the Company from, any liability (including but not limited to consequential loss or damage) because of any delay in delivery or fault or defect in the Goods. The Customer acknowledges that the Company is not:

·         responsible if the Goods do not comply with any applicable safety standard or similar regulation; and liable for any claim, damage or demand resulting from such non-compliance.

·         If any statutory provisions under the Trade Practices Act 1974 or any other statute apply to the contract between the Company and the Customer (Contract) then, to the extent to which the Company is entitled to do so, the Company’s liability under the statutory provisions is limited, at the Company’s option, to:

·         replacement or repair of the Goods or the supply of equivalent Goods; or

·         payment of the cost of replacing or repairing the Goods or of acquiring equivalent goods; and in either case, the Company will not be liability for any consequential loss or damage or other direct or indirect loss or damage.

·         The Customer further agrees that the Company and any of its employees, agents, affiliates, and/or suppliers shall not be liable to the Customer for any claims, damages, or loss of profit which may be suffered by the Customer or any other entity in any respect for direct, indirect, consequential, actual, or punitive damages arising out of or in relation to Services provided hereunder, including, but not limited to, losses or damages resulting from loss of Customer Data. The utilization of any data or information received by Customer via the suppliers, Services, and/or other suppliers resources is at Customer’s sole and absolute risk, and the Company specifically disclaims and denies any responsibility for the completeness, accuracy, or quality of such data or information.

·         We disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law, including the implied warranties relating to satisfactory quality and fitness for a particular purpose. You are solely responsible for the suitability of the services chosen. Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an ‘AS IS’ basis. 

·         Certain supplier services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those Services in a manner that complies with the applicable requirements. 

·         The Company makes no representation or warranty whatsoever regarding open source software, OpenStack Software or the supplier Private Cloud Software. 

·         The Company disclaims any and all warranties not expressly stated in this Agreement, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

Contract

·         The terms of the Contract are wholly contained in these Terms and any other writing signed by both parties. The Contract is deemed to have been made at the Company’s place of business where an order was placed and any cause of action is deemed to have arisen there.

Right to Enter Premises

The Customer:

·         authorises the Company by itself, its agents or representatives at all reasonable times, without notice, to enter onto (with force if reasonably necessary) and to remain in and on any premises where the Goods are located in order to collect the Goods, without being guilty of any manner of trespass; and

·         assigns to the Company all the Customer’s rights to enter onto and remain in and on such premises until all the Goods have been collected.

Confidentiality and intellectual property

·         The Customer acknowledges that the Company retains exclusive ownership of all rights of intellectual property made available to the Customer under this agreement, including but not limited to present and future copyright and confidential information (including trade secrets and know-how).

·         The Customer acknowledges that all confidential information disclosed to it during the course of this contract is and shall remain the sole exclusive property of the Company. The Customer agrees to treat any such confidential information in strict confidence and not disclose or use it for any purpose other than as expressly contemplated by this agreement.

Supplier Code of Conduct

·         The Victorian State Government’s Supplier Code of Conduct is available at the Victorian Government Purchasing Board website: http://www.buyingfor.vic.gov.au. Updates and amendments to the Code will also be made available at this website.

·         The Company acknowledges that:

o   the Company Code of Conduct is an important part of the State’s approach to procurement and describes the State’s minimum expectations regarding the conduct of its suppliers;

o   the Company has read the Supplier Code of Conduct; and

o   the expectations set out in the Supplier Code of Conduct are not intended to reduce, alter or supersede any other obligations which may be imposed on the Company, whether under this Agreement or at law.

 

Applicable Legislation

·         The Company shall comply with all applicable Laws that relate to the subject matter of this Agreement.

·         For the purpose of this Agreement, the term, “Laws” means:

·         the law in force in Victoria, including common law, Commonwealth and State legislation and subordinate legislation;

·         ordinances, regulations and by-laws of relevant government or local authorities; and

·         all other lawful requirements of public bodies and other competent authorities in any way affecting or applicable to the Agreement (including any codes of practice, codes of conduct or similar requirements that would apply due to the particular type of goods to be provided).