Policies
Terms and Conditions of Sale, Service and Technical Support ( "Terms and Conditions" )
1. DEFINITIONS
1.1 "We" or “we” or “Us” or “us” or “Our” or “our” mean the CAD-Smith Pty. Ltd. Company selling products to the Customer as identified in CAD-Smith Pty. Ltd. Quotation or Invoice.
1.2 "Customer" means the person or legal entity identified in our Quotation or Invoice.
1.3 "Contract" means an agreement for sale by us to the Customer of the products and/or services incorporating the Terms and Conditions.
2. FORMATION OF CONTRACT
2.1 No Contract shall come into existence until the Customer's order has been accepted by us. The Customer warrants that it is buying for its own internal use only and not for re-sale purposes.
2.2 The products sold and/or services rendered are subject to the Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by Customer. The Customer acknowledges that it is aware of the contents of and agrees to be bound by the Terms and Conditions.
3. ORDERS, PRICE AND PAYMENT
3.1 Unless credit terms have been expressly agreed to by us, or set out in our quotation, payment for the products or services shall be made in full before physical delivery of products or services upon placement of orders for products or services.
3.2 Customer shall pay for all shipping and handling charges unless it is stated otherwise on the quote.
3.3 Customer shall bear all Goods and Services Taxes, and any State or Federal Government Levies or Duty applied to the cost of the goods or services sold.
3.4 Time for payment is of the essence. We reserve the right to charge interest at the rate of 3% above the base commercial floating rate for ANZ Bank in Melbourne Australia.
3.5 Late payment and outstanding invoices. We reserve the right to charge interest at the rate of 5% on all invoices, if the customer exceeds their terms of payment.
4. SOFTWARE
4.1 All software provided is subject to the terms and conditions of the license agreement relating to that software. Customer acknowledges its obligations to abide by such license agreements. Customer acknowledges that we do not warrant any software under these Terms and Conditions. All software is warranted in accordance with the license agreement that governs its use.
4.2 All rights, title or interest in respect of the intellectual property rights in the software remain with we or the licensor of the software at all times.
4.3 We make no warranty whatsoever with respect to software including in any system sold by us, and all software is sold “as is” and “with all faults”. In no event shall we be liable to you or any third party for lost profits of other special, consequential, incidental, or indirect damages, losses, costs or expenses of any kind, however caused, and whether based on contract, tort (including negligence), or any other theory of liability regardless of whether we have been advised of the possibility of such damages, losses, costs of expenses. Except as set forth herein, we make no warranties, expressed or implied, and disclaim and negate all other warranties, including without limitation, implied warranties of merchantability, and fitness for a particular purpose and conformity to models or samples.
5. TITLE, DESIGN AND INTELLECTUAL PROPERTY RIGHTS – RISKS AND PRIVACY POLICY
5.1 Title to and risk in the products shall pass to the Customer upon payment and delivery of the products to Customer. Title to those products, which are software, shall remain with the applicable licensor(s) at all times. Title and/or copyright of the website design, brochures or any other artwork remain with us at all times. The Design and/or Artwork are only to be used for their intended purpose as outlined in our quotes or invoices.
5.2 Title of goods remains with us if delivery has taken place and payment has not occurred. Complete ownership and title of goods passes on to customer, after complete payment and all outstanding sums have been met.
5.3 CAD-Smith retains the and/or controls all copyright and all intellectual property rights ( “IP” ) relating to the design submitted, copywriting, translations, all physical products and/or material supplied ( “material” ). The customer may use material ( but only for the stated purpose and at the site nominated in the design ). Any unauthorised copy, reproduction, modification or use at another site will attract ( at least ) an initial minimum fee equal to the amount quoted, without limiting any other rights of CAD-Smith ( whether for injunctive relief, damages or otherwise ).
We may reproduce, publish, use, display, transmit, develop similar works, and give out copies from your web site unless we have made an agreement otherwise. In addition, we may use any concepts or techniques achieved the building of your web site for any function whatever, such as marketing our services or developing other products or services.
5.4 The Contents of your Web Pages, logo graphics and images supplied by you are your sole responsibility. We will assume that you, our customer, have the right to reproduce this material on the internet, any other electronic form and/or printed material and that it complies with the State and Federal laws of Australia.
In particular it is the customer’s responsibility to provide us with factual information regarding their Products/Services having due regard for ownership of ‘Trade Marks’ and laws relating to Advertising Claims as directed by the Australian Competition & Consumer Commission.
5.5 We will upload the customer’s website on line for proof reading and it is the customer’s responsibility to ensure the contents is correct in every regard before it is released to the public.
5.6 Our Privacy Policy covers all information received from clients to be treated as confidential and does not share this information with other companies without your expressed authority.
5.7 Any information that we may receive, that is of a personal nature and could be used to assist in market research, will not be sold or passed onto any other third parity. It may also be used for processing transactions, customer service and customer support, recruiting, assisting the development of Websites and other material.
5.8 We explicitly reserve the right to disclose any such personal information if required to do so by law, or in the good faith belief that such action is reasonably necessary to comply with legal process, respond to claims, or protect the rights, property or safety of our company, employees, customers, or the public.
5.9 Any risks and liabilities associated with the product are responsibilities of the customer.
6. DELIVERY
6.1 We shall deliver the products to the place of delivery designated by Customer and agreed to by us ( "Place of Delivery" ), unless other arrangements have been made with the Customer.
6.2 We may, at our discretion, deliver the product or service by instalments in any sequence. Where the products are so delivered by instalments, each instalment shall be deemed to be the subject of a separate contract and no default or failure by us in respect of any one or more instalments shall vitiate the Contract in respect of products previously delivered or undelivered products.
6.3 Any dates quoted by us for the delivery of the products are approximate only and shall not form part of the Contract. We shall not be liable for any delay in delivery of the products and/or services, howsoever caused.
7. ACCEPTANCE OF PRODUCTS
7.1 Unless the Customer notifies us to the contrary on the day of delivery and such notification is confirmed in writing within two days, the Products shall be deemed to have been accepted by the Customer as being in good condition and in accordance with the Contract. The Customer shall not be entitled to withhold payment of all or any of the price of the Products whilst any claim is being investigated by us.
8. WARRANTY
8.1 Unless specified otherwise, we warrant to the Customer that our branded Products (excluding third party products, services and software), will be free from defects in materials and workmanship affecting normal use for a period of one year from invoice date ("Standard Warranty").
8.2 This Standard Warranty does not cover damage, fault, failure or malfunction due to external causes, including accident, abuse, misuse, problems with electrical power, servicing not authorized by us, usage and/or storage and/or installation not in accordance with Product instructions, failure to perform required preventive maintenance, normal wear and tear, act of God, fire, flood, war, act of violence or any similar occurrence; any attempt by any person other than our personnel or any person authorised by us, to adjust, repair or support the Products and problems caused by use of parts and components not supplied by us. The addition of third party Products to products supplied by us; may void the warranty of Product’s supplied by us. The Standard Warranty does not cover any items that are in one or more of the following categories: software; external devices; accessories or parts added to the Product after the Product is shipped from us; accessories or parts that are not installed by us.
8.3 During the one-year period beginning on the invoice date, we will repair or replace Products returned to us. Customer must prepay shipping and transportation charges, and insure the shipment or accept the risk of loss or damage during such shipment and transportation. We will ship the repaired or replacement products to Customer freight prepaid. The Customer accepts the risk of loss or damage during such shipment and transportation returning products back to the Customer.
8.4 We do not give any warranty that the Products are fit for any particular purpose and this Standard Warranty is given in place of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, trade usage, course of dealing or otherwise including warranties or conditions of merchantability, fitness for purpose, satisfactory quality and/or compliance with description, all of which are hereby excluded to the fullest extent permitted by law. Standard Warranty is only given to the original purchaser of the product.
8.5 The Customer agrees that, in relation to third party products purchased through us, the Products are covered by a relevant manufacturer's warranty, then the Standard Warranty shall not extend to such Products and such manufacturer's warranty shall be the sole warranty in respect of such Products. The Customer shall utilise that warranty for the support of such Products and in any event not look to us for such warranty support.
8.6 The Customer agrees that, in relation to delivery of products returned after a warranty or service incident; the place of delivery is the original "Place of Delivery" as stated on the original purchase invoice. Delivery to any other address is at our option and may incur additional charges to the Customer.
9. SERVICE AND TECHNICAL SUPPORT
9.1 We will provide general service and technical support to Customer in accordance with the then-current service and technical support policies in effect. Service and support offerings may vary from product to product. If Customer purchases optional services and support as listed on Customer's invoice, We will provide the optional service and support to Customer in accordance with the then-current terms and conditions in the optional service contract between us and Customer (available upon request) in addition to the Standard Warranty. We may, at our discretion, revise our general and optional service and support programs and the terms and conditions that govern them. We have no obligation to provide service or support until we have received full payment for the product or service/support contract for which service or support is requested.
10. LIABILITY
10.1 Our total liability herein in respect of each event or series of connected events shall not exceed the total price paid for the purchase of products and/or services under these Terms and Conditions.
10.2 If the total costs for rectifying any faults exceed the original purchase price, then the additional costs shall be covered by the Customer.
10.3 The Customer shall indemnify us and keep us fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and Conditions.
10.4 The Customer agrees that we will not be liable for Products not being available for use, or for data or software which is lost, corrupted, deleted or altered. We shall not be liable to the Customer for any incidental, indirect, special or consequential damages arising out of or in connection with the purchase, use or performance of products or services, even if we have been advised of their possibility.
10.5 Any service response times stated by us in the service contracts are approximate only and we shall not be liable for any direct or indirect loss or damage arising from its failure to meet such response times, howsoever occasioned.
10.6 Any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by us shall be subject to correction without any liability on the part of CAD-Smith Pty. Ltd. or its staff or Directors. Including any typographical errors or omission in this document stating service policies provided on our website.
11. FORCE MAJEURE
11.1 Neither party shall be liable for any delay in performing any of its obligations under these Terms nor Conditions stated in the service policies, if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
12. EXPORT RESTRICTIONS
12.1 The Customer acknowledges that the Products licensed or sold hereunder, which may include technology and software, that are not only subject to the export control laws and regulations of the United States ("U.S.") but may also be subject to the export control laws and regulations of the country in which the Products are received. The Customer agrees to abide by all applicable export control laws and regulations. Under such laws and regulations, the Products purchased may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products may not be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons, or weapons based on phase 5 technology. The Customer understands that applicable requirements or restrictions may vary depending on the Products delivered and may change over time and that, to determine the precise controls applicable to the Products acquired, it may be necessary to refer to relevant laws and regulations.
13. GOVERNING LAW
13.1 These Terms and Conditions shall be governed by and construed in accordance with the laws of Victoria / Australia and shall be subject to the non-exclusive jurisdiction of the courts of Victoria / Australia.
14. GENERAL
14.1 The Customer shall not assign or otherwise transfer any Contracts or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of us. Any such unauthorized assignment shall be deemed null and void.
14.2 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
14.3 Under the Trade Practices Act 1974 ("Act"), where implied conditions and warranties cannot be excluded, our liability for breach of such conditions and warranties (other than a condition or warranty implied by section 69 of the Act) shall be limited, at our option, to (a) in the case of products, the replacement of the products or the supply of equivalent products; the repair of such products; the payment of the cost of replacing the products or of acquiring equivalent products; or the payment of the cost of having the products repaired OR (b) in the case of services, the supplying of services again; or the payment of the cost of having the services supplied again, at written approval by us, in the case that we can not follow up on our obligations under our warranty agreement. We reserve the right to choose the company’s, persons or suppliers; that will undertake the service or repair if we cannot perform such service or repair. The Customer can not undertake service or repair at will, with other company’s, persons or suppliers. Such service or repair with other company’s, persons or suppliers; voids the warranty and we are not liable for any costs arisen thereby for such service or loss of business or income.
February 2007