Terms & conditions

PURCHASE AGREEMENT

All products (“product”) sold by Access Macquarie Limited (“Macquarie”) to the client (“Client”) whether pursuant to an accepted quotation or an accepted order or otherwise, are sold based on the terms and conditions below;

TERMS AND CONDITIONS

  1. Contract
    • The contract for the sale of the product comprises of Macquarie’s quotation and the Client’s acceptance thereof (evidenced by issue of a purchase order), and these terms and conditions (Contract). No other terms, including any terms that may be included in the Client’s acceptance or purchase order, apply unless expressly agreed in writing by both parties to be part of the Contract.
    • If there is any inconsistency between any of these terms and conditions and any other provision of the Contract, the latter will prevail over the former to the extent of the inconsistency.
  2. Orders
    • Client must submit a purchase order to Macquarie identifying the ordered product. Macquarie will, within 5 working days of receipt of order, confirm the order to the Client or advise the Client of any issues arising from the purchase order. The issue by Macquarie of confirmation of the order forms a binding agreement between the parties.
  3. Terms of Supply
    • Unless expressly agreed otherwise, the product must be collected by the Client or their nominee. If the Client cannot collect the product, Macquarie will arrange for delivery at the Client’s cost and will use the Client’s preferred choice of carrier when possible. In this event, the Client must specify in writing if any particular insurance should be taken out on behalf of the Client at the Client’s expense.
    • The parties agree that risk for the product will pass to the Client at the time the product passes over the side of the vehicle onto which it is being loaded for collection.
    • The product shall be delivered ex-works (EXW) (Incoterms).
  4. Delay of Supply
    • The delivery date specified in the quotation is an estimated delivery date only. Macquarie will use its best endeavours to comply with the agreed dates of delivery. Macquarie shall accept no liability of whatsoever nature for failure to meet such dates and such failure shall not entitle the Client to repudiate or cancel the Contract.
    • Macquarie shall notify the Client of any delay as soon as practicable.
  5. Prices and Payments
    • Quoted prices are ex-works. Freight, taxes, duties and other costs that could be incurred in connection to the delivery of the product is the Client’s responsibility.
    • Product will be dispatched on receipt of full payment only.
    • All quoted prices are in AUD$ (Australian currency). Foreign exchange rate, government charges, duty, insurance, freight and other costs are not included in the quoted prices.
    • The Client further agrees to pay any tax imposed on the supply of goods and services (but excluding income tax) imposed by the Government of Australia that may be payable in respect of the services, the services to be performed or otherwise. Macquarie shall invoice any tax separately so as to allow the Client to claim a tax credit.
  6. Guarantees
    • The Client agrees and acknowledges that Macquarie makes no guarantee that the product will operate satisfactorily. Macquarie’s sole liability in the event that the product does not operate is to replace the product or to repay the fees paid by the Client for the product.
    • Where the performance of Macquarie’s obligation under this Clause 6 requires the return of the product, the Client must return the product to Macquarie at the Client’s risk, freight, duty, insurance and other additional costs paid by the Client.
    • It is the Client’s responsibility to ensure that the product is suitable for its intended purpose.
  7. Title and Risk
    • Title to the product passes on to the Client on receipt of full payment.
    • Risk of loss of or damage to the product shall pass to the Client on dispatch from Macquarie’s premises.
  8. Limitation of Liability and Indemnity
    • The Competition and Consumer Act (2010) implies certain non-excludable conditions and warranties into some contracts for the supply of services. To the full extent permitted by the Competition and Consumer Act (2010), Macquarie limits its liability in relation to the provision of the services under this agreement to the supplying of the services again or the refund.2
    • To the fullest extent permitted by law, Macquarie will not be liable for any indirect, incidental, consequential, special or exemplary damages or lost profits arising out of or in connection with this Agreement. In no event shall Macquarie’s total liability for any damages, direct or indirect, in connection with this Agreement in respect of each event or a series of events, exceed the total amount that would be due to be paid to Macquarie by the Client in connection with this agreement, whether such liability arises from any claim based upon contract, tort or otherwise.
    • Macquarie does not give any warranty, whether express or implied, that the product is fit for any purpose.
    • The Client hereto agrees to indemnify, hold harmless, and defend Macquarie, Macquarie University and its respective affiliates, trustees, officers, employees, students, and agents against all actions, claims, proceedings or demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss, loss of profits) arising out of:
      • use of the product by the Client, or any person licensed or authorised by the Client;
      • any modifications, alterations or improvements made by the Client, the Client’s employees, agents or subcontractors to the product;
      • any negligent act or omission of the Client, its employees, officers, agents or contractors; except to the extent that such claims for death, illness, personal injury, property damage arise out of or result from the negligence, recklessness or wilful misconduct of Macquarie or its respective trustees, officers, employees, licensees, assignees, contractors, consultants, students, and agents, either collectively or individually.
    • The Client’s obligations under this release and indemnity clause include payment of all damages, costs and expenses, including solicitor and client legal costs incurred in defending or settling any such action claims proceedings or demands.
    • Each indemnity or disclaimer of liability in this agreement is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion or expiration of this Agreement.
  9. Ownership of Product and Intellectual Property
    • Ownership of the physical product created by Macquarie as a result of the performance of the service shall pass to the Client on payment of the total fee.
    • Any Intellectual Property created by Macquarie in the course of the development of the product, including any customisation, or relating to the process, development, method, design plan calculations, formulae for developing or creating the product or will be owned by Macquarie upon creation of the product.
    • Both parties agree that nothing in this agreement provides any rights to either party to the other party’s pre-existing Intellectual Property except to the extent required to fulfil the requirements of this Agreement.
    • The Client agrees that it will not, nor will it permit any third party to, reverse engineer, deconstruct, disassemble or decompile the product.
  10. Force Majeure
    Neither party shall be liable to the other for any default hereunder, if such default is caused by an event beyond such party’s control, including without limitation, acts or failures to act of the other party, floods, fires, governmental requirements, strikes, industrial disputes, insurrection, war and acts of God. In the event of a default or a threatened default as a result of the above causes, the defaulting party shall use its best efforts to avoid and remedy such default. Should the default prevent performance hereunder for a period of greater than ninety (90) days, then the non-defaulting party may elect to terminate this agreement.
  11. Severability
    If any part of this agreement is held invalid, unenforceable or illegal for any reason, this agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.
  12. Waiver
    A waiver by either party of any breach of or failure to comply with the agreement by the other party is of no effect unless it is in writing and a waiver of any particular breach or failure to comply is not to be treated as a waiver of any other or any continuing or subsequent breach of or failure to comply with the agreement.
  13. Applicable Law
    This Agreement is governed by the laws in force in New South Wales
  14. Disputes
    • If a dispute arises out of or relates to this Agreement, its breach validity or subject matter or as to any claim in tort, in equity or pursuant to any domestic or international law, the parties expressly agree to endeavour in good faith to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (“ACDC”) before having recourse to arbitration or litigation. AMQ Purchase Agreement July 2015 3
    • A Party claiming that a dispute has arisen must give written notice to the other party to the dispute specifying the nature of the dispute. On receipt of the notice the parties must within 7 days after receipt of the notice, meet to resolve the dispute. If the dispute is not resolved within 7 days or such further period as the parties agree then the dispute must be referred to ACDC. Any mediation must be conducted in accordance with ACDC Mediation guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved, which terms are deemed incorporated in this clause.
    • This clause shall survive termination or expiration of this agreement