General Terms and Conditions
1. General
The whole of the Agreement between Zynet Pty Ltd ACN 087 747 573 (“Zynet”) and the Applicant referred to in the Account Application or Customer referred to in the Quotation (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Zynet under these Terms (“Products”), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.
2. Credit Terms
2.1 Payment is due on or prior to seven (7) days from the date of invoice rendered in respect of the supply of the Products unless otherwise stated in writing by Zynet.
2.2 For all project work, unless a greater amount is specified in writing, 30% of the estimated service costs will become due upon the Customer instructing Zynet to commence the project and must be paid within seven (7) days from the date of such instructions.
2.3 For all hardware and software purchases payment must be made in full prior to delivery.
2.4 Zynet may charge interest at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 if payment is not received by the due date.
2.5 Zynet is entitled to set-off against any money owing to the Customer amounts owed to Zynet by the Customer on any account whatsoever.
2.6 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.7, and then to principal.
2.7 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Zynet for enforcement of obligations and recovery of monies due from the Customer to Zynet.
3. Quotations and Pricing – All Products
3.1 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
3.2 Unless otherwise specified by Zynet, the prices exclude any statutory tax, including any GST, duty or impost levied in respect of the Products and which has not been allowed for by Zynet in calculating the price.
4. Quotations and Pricing – Projects and General work
4.1 Projects include all design, installation, consultancy and advice work, project management, and procurement services.
4.2 Prices charged for Products will be according to a current quotation for those Products. Otherwise, they will be determined by Zynet by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Zynet will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
4.3 Pricing for certain elements outside Zynet’s control are subject to change. Any additional work outside the quotation or as a result of circumstances outside Zynet’s control will be charged by reference to Zynet’s standard prices. Any out of pocket expenses, unless specifically quoted, will be charged separately.
4.4 Any quotation by Zynet will not constitute an offer and represent an indicative cost only. Quotations will remain valid for seven (7) days from the date of the quotation unless otherwise stated in writing by Zynet.
5. Pricing – Monitoring and Maintenance Agreements only
5.1 Prices charged for monitoring and maintenance services will be according to a current Agreement for those services.
5.2 Charge for any additional services, including travel time, will be determined by Zynet by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and which may be charged at ordinary or out of hours rates). Zynet will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
5.3 The Customer will be invoiced monthly in advance by Zynet for the monitoring and/or maintenance services.
5.4 The Customer agrees to enter into a minimum 12-month contract for monitoring and/or maintenance services. If the Customer terminates the contract prior to the minimum 12-month term the Customer will pay to Zynet a fee equivalent to 3 months prior to termination.
6. Intellectual Property Rights
6.1 It is the responsibility of the Customer to ensure that they hold all necessary licences required for any software already installed on their equipment or any software not installed by Zynet.
6.2 Unless otherwise specified by Zynet, Zynet reserves all intellectual property rights in Products supplied by Zynet to the Customer, including but not limited to copyright in any software supplied and copyright in any documentation provided.
6.3 All documentation provided by Zynet to the Customer is confidential information and should not be copied or provided to any other party without the express written permission of Zynet.
7. Delivery & Supply
Any times quoted for delivery of goods and/or supply of services are estimates only and Zynet shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Products, by reason of any delay in delivery/supply or dispatch. Zynet reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
8. Property
8.1 Until full payment has been made for all Products and any other sums in any way outstanding from the Customer to Zynet from time to time:
8.1.1 All sums outstanding become immediately due and payable by the Customer to Zynet if the Customer makes default in paying any other sums due to Zynet, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.
8.1.2 The property in the Products shall not pass to the Customer and the Customer shall hold the Products as bailee for Zynet (returning the same to Zynet on request). The Products shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Products from the time of delivery/supply.
8.1.3 The Customer is only authorised to sell the Products (or any portion of them) to third parties as the fiduciary agent of Zynet provided that there shall be no right to bind Zynet to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Products (or any portion of them) shall be held on trust for Zynet pursuant to the fiduciary relationship.
8.1.4 In the event that the Customer incorporates or transforms the Products (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment (“relevant proportion”) received by the Customer for such goods or products on trust for Zynet. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Products incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion.
8.1.5 Zynet is irrevocably authorised to enter any premises where the Products are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Products without liability for trespass or any resulting damage.
8.2 In addition to any lien to which Zynet may, by statute or otherwise, be entitled, Zynet shall in the event of the Customer’s insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Zynet’s possession (although all or some of such property or goods may have been paid) for the unpaid price of any Products sold or delivered to the Customer under this or any other contract.
9. Cancellations and Claims
9.1 No cancellations or partial cancellation of an order by the Customer shall be accepted by Zynet unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Zynet, will indemnify Zynet against all loss, without limitation.
9.2 All complaints, claims, or notifications of lost goods, incomplete goods, goods damaged in transit or goods that do not comply with the Customer’s purchase order must be submitted by the Customer to Zynet in writing within seven (7) business days of the date of the invoice rendered for the supply of the goods. Otherwise, the Customer shall be deemed to have accepted the goods and shall not refuse to pay for the goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase order.
10. Privacy Act 1988 (“Privacy Act”)
To enable Zynet to assess the Customer’s application for credit, the Customer authorises Zynet:
10.1 To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and
10.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and
10.3 To give to a credit reporting agency information including identity particulars and application details
AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises Zynet to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms
11. Notification
The Customer must notify Zynet in writing within seven (7) days of:
11.1 Any alteration of the name or ownership of the Customer, or any alteration of contact details.
11.2 The issue of any legal proceedings against the Customer.
11.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
11.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Zynet for all Products supplied to the new owner by Zynet until notice of any such change is received.
12. Warranties
12.1 No warranties except those implied and that by law cannot be excluded are given by Zynet in respect of Products supplied. Where it is lawful to do so, the liability of Zynet for a breach of a condition or warranty is limited to the repair or replacement of the Products, the supply of equivalent Products, the payment of the cost of repairing or replacing the Products or acquiring equivalent Products, as determined by Zynet.
12.2 Any guarantee provided by third party suppliers of Products will be handed on to the Customer, and any enquiries should be directed to the third-party supplier.
12.3 Other than where Zynet has specifically contracted to advise on the suitability of Products, the Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Products for specific purposes and procedures and, in this respect, shall indemnify Zynet from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against Zynet.
12.4 The Customer acknowledges that Zynet may from time to time utilise third party suppliers to supply the Products. All contacts should remain through Zynet. Zynet accepts no responsibility for any work completed by such third-party supplier that has not been arranged through Zynet. The Customer will not seek to contract directly with the third-party suppliers or offer employment to the third party suppliers.
12.5 Unless specifically and separately agreed in writing, Zynet shall not be liable for any matters relating to backups or ant-virus protection, which shall remain the responsibility of the Customer at all times.
13. Force Majeure
Zynet shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Products impossible, where all money due to Zynet shall be paid immediately and, unless prohibited by law, Zynet may elect to terminate the Agreement.
14. Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of Zynet all of the Customer’s estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer’s Street Address in the Credit Application if applicable) (“Land”) to secure payment of accounts rendered by Zynet to the Customer for the delivery and/or supply of the Products including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by Zynet and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
15. Failure to Act
Zynet’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Zynet’s failure to exercise any right or remedy available under these Terms or at law, or Zynet’s failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Zynet’s right to demand timely payment of future obligations or strict compliance with the Terms.
16. Legal Construction
16.1 These Terms shall be governed by and interpreted according to the laws of Victoria and Zynet and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
16.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.