1. Supply of Products and Services
1.1. Kytec Pty Ltd (ACN 167 847 430) (“Kytec”) agrees to supply hardware and software (“Products”), subscription services (“Subscriptions”), professional and managed services (“Services”) and vendor maintenance (“Maintenance”) based on these standard Terms and Conditions of Sale.
1.2. These Terms and Conditions of Sale apply to any quotation and subsequent Purchase Order provided by Kytec unless the quotation explicitly states that it is subject to a separate contract signed by the parties. In this instance, these Terms and Conditions will remain to the extent that they are not contradicted by the separate agreement.
2. Purchase Orders
2.1. Purchase Orders may not seek to amend or update these Terms and only these Terms should be considered to form part of the agreement between the parties unless a separate signed agreement is put in place by the parties in accordance with 1.2 above.
2.2. Acceptance of a Purchase Order by Kytec does not represent acceptance of any conditions within that purchase order.
3.1. Invoices will be rendered for Products, Subscriptions and Maintenance:
3.1.1. At the beginning of the subscription or maintenance term; or
3.1.2. On physical or electronic delivery to the Customer designated location; or
3.1.3. On delivery to another specified location if required for configuration and/or staging
3.2. Invoices will be rendered for Services at the end of each month or upon completion for professional services.
3.3. Invoices will be rendered 1 month in advanced for all managed services.
3.4. Payment terms are strictly 30 days from the date of invoice. Payment of undisputed amounts must not be withheld pending the settlement of any other claims or disputes between the Parties.
4. Subscription Services
4.1. Where the quotation includes subscription services, the quotation should be interpreted as a fixed term commitment including any renewal periods. Where no term is specified, the term is assumed to be 36 months with a 12 month renewal at the end of the first and each subsequent term.
4.2. If the subscription services are resale of a third party’s service, the supply of the subscription services will be on the third party’s terms and conditions as published by the relevant third party.
5.1. Kytec makes no warranty in relation to the Products, Subscriptions, Services or Maintenance other than as contained in these Terms or as prescribed by Australian law or as provided by the third party manufacturers as made known to the Customer.
5.2. Any defects in Hardware or Software will be rectified in accordance with the manufacturers warranty.
5.3. Defects in Services reported to Kytec within 30 days of delivrery with be rectified by Kytec at no cost.
5.4. Any claims under warranty will be denied by Kytec where the defects are caused by;
5.4.1. Any act or omission by the Customer or third party that has caused the defect
5.4.2. Any use of the Product other than for its intended purpose
5.4.3. Any attempted maintenance by persons other than a Kytec representative or representative of the manufacturer
5.4.4. Any relocation of the equipment
5.4.5. Environmental conditions outside the operating conditions provided by the manufacturer
6.1. All reasonable attempts to Deliver Products and Services to the Client by the agreed date will be made however Kytec will not be held liable for any delays caused by matters outside its control. Delivery costs will be invoiced to the Customer unless explicitly agreed otherwise.
7.1. Unless written notice is provided within 7 days of the date of delivery, the Customer will be deemed to have accepted that deliverable on the date that it was delivered
8.1. Products can only be returned if authorized by both the relevant thrd part manufacturer or distributor and Kytec. Charges may apply. Products must be returned in the same condition as they were delivered and Kytec reserves the right to charge the Customer for any costs or losses incurred as a result of the Return.
9. Risk and Title
9.1. All risk of loss or damage to Products will pass to the Client upon delivery of the Products to the Client or an authorised representative or agent of the Client.
9.2. Notwithstanding the risk passed onto the client upon delivery as per clause 9.1, title to all Products delivered remain with the Supplier until all monies owing on the Products is paid in full.
9.3. Until all invoices relating to the goods are paid in full the Client must;
9.3.1. hold goods as bailee for Kytec;
9.3.2. agree to hold goods in such a way that they are easily identifiable as property of the Supplier.
9.3.3. not sell or offer for sale the Goods;
9.3.4. grant Kytec the right to and expressly authorise them to enter the premises at any reasonable time without liability of trespass or other damages incurred as part of the action, to repossess the goods should the Customer be in default by breaching payment terms.
9.3.5. agree to pay all costs associated with the repossession of goods should this occur
10.1. Kytec 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 Kytec or the Customer.
11. Intellectual Property
11.1. The Customer acknowledges that, unless otherwise agreed in writing, all intellectual property rights attaching to the Products or arising out of the provision of Services are and will remain the property of Kytec (or its supplier, where such rights are owned by that supplier). Software will be licensed to the Client on the terms of the relevant licence agreement provided with the Product or as published by the software owner or as otherwise agreed between Kytec and the Customer in writing. Any rights to be conferred on Customer will only commence on payment of all charges payable in connection with those rights.
12.1. Where the Customer:
12.1.1. makes default in any payment or breaches any of these Terms;
12.1.2. becomes unable to pay its debts as and when they fall due; or
12.1.3. 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,
12.2. Kytec may without prejudice to any of its rights or remedies under these Terms or otherwise by notice to the Customer:
12.2.1. suspend further supply and require payment in advance for future supply;
12.2.2. recover possession of any Product for which payment has not been made;
12.2.3. terminate all or any purchase orders for Products or Services which have been accepted by Kytec;
12.2.4. 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 Kytec; and/or
12.2.5. continue to enforce its rights and recover from the Customer such payments and any other amounts owing as and when they fall due.
13.1. The Customer acknowledges that Kytec 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 Kytec or not), unless provided in writing.
14. Implied Terms
14.1. 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 Kytec for a breach of a condition or warranty implied into these Terms by the Competition and Consumer Act, 2010 (Cth) is limited at the option of Kytec:
14.1.1. 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
14.1.2. if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again.
15. Limitation of Liability
15.1. Kytec 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 Kytec 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.
15.2. Except in relation to liability for personal injury (including sickness and death), or damage to tangible property, Kytec’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 Kytec to comply with its obligations under these Terms is, in aggregate, limited to an amount equal to the amount paid by the Customer to Kytec under the relevant purchase order.
16.1. Any variation to these Terms must be in writing.
17.1. Although the quoted price might exclude GST, the total amount payable to Kytec includes 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 Kytec’s quotation or proposal or in respect of the supply of the Products and Services.
17.2. The client must pay any GST payable in connection with the supply and Kytec will issue a valid tax invoice where GST is to be recovered.