TERMS & CONDITIONS
The terms and conditions set out below will apply to all services provided by the
Atek Pty Ltd ACN 062 388 470 (Atek) to the Customer.
For the purpose of these Terms & Conditions, the following terms have the meaning prescribed to them:
1.1 Agreement means the Terms & Conditions, any credit applications and orders made pursuant to this Agreement;
1.2 Business Day means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in Queensland, Australia and concludes at 5pm on that day;
1.3 Customer means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any credit application, order form, invoice or other form provided by Atek to the Customer together with its successors and assignees;
1.4 Confidential Information means any information, however produced or stored, material or technology relating to Atek, Atek’s Goods and Services, affairs, finances, suppliers, Intellectual Property, Customers, customers, agents, distributors, shareholders, management, know-how, or trade secrets, for the time being confidential to Atek or any related body corporate of Atek (as the case may be) and that the Customer creates, develops, modifies, receives, obtains or sees in connection with this Agreement, the Services or any other dealings with or for Atek, whether or not that information is marked confidential, including the terms of this Agreement, the nature or content of the Services, information designated as confidential by Atek, the methods of operation of Atek, matters of a technical nature including designs, algorithms, process, structures, software, source code, object code and inventions, software, applications, products or services developed or under development, business records, know-how, trade secrets, and specifications, financial information, pricing, marketing and planning techniques and procedures, names and details of agents, Customers or suppliers of Atek at the date of this Agreement or at any time throughout the operation of this Agreement. Confidential Information excludes information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality, as well as information which is not confidential as a matter of law;
1.5 Goods mean any and all good or goods supplied by Atek to the Customer and are as described in any orders, invoices or any other forms as provided by Atek to the Customer;
1.6 GST means any form of goods and services tax payable under the GST Law;
1.7 GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
1.8 Intellectual Property includes patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, algorithms, applications and code, database rights, topography rights, rights in the Confidential Information (including know-how, trade secrets and ideas) and any other intellectual property rights, in each case whether registered or unregistered, whether capable of registration or not and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
1.9 parties mean the Customer and Atek, and party means anyone (1) of them;
1.10 PPSA means the Personal Property Securities Act 2009 (Cth);
1.11 PPSR means the Personal Property Securities Register;
1.12 Price means the price payable for the Services as agreed between Atek and the Customer in accordance with this Agreement;
1.14 Quotation means any quotation for Goods or Services provided by Atek to the Customer in accordance with these Terms & Conditions;
1.15 Services mean all services supplied by Atek to the Customer, including the supply of Goods, as described in any Quotation, orders, invoices or any other forms as provided by Atek to the Customer;
1.16 Terms & Conditions means these terms and conditions; and
1.17 Warranty means any warranty document or statement provided to the Customer by Atek for any Goods or Services.
2.1 Any instructions received by Atek from the Customer for the supply Services and/or the Customer’s acceptance of Services supplied by Atek will constitute acceptance of this Agreement.
2.2 Where more than one (1) Customer has entered into this Agreement, the Customers will be jointly and severally liable for all payments of the Price and any other monies payable by the Customer pursuant to this Agreement.
2.3 Upon acceptance of this Agreement by the Customer, this Agreement is binding and can only be amended with the written consent of Atek.
2.4 Subject to clause 2.5, Services are supplied by Atek only in accordance with this Agreement to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override this Agreement.
2.5 The Customer acknowledges and agrees that acceptance of this Agreement does not imply access to all of Atek’s services and such services may be subject to additional terms and conditions.
2.6 The Customer will give Atek not less than fourteen (14) days prior written notice of any change in the Customer’s details (including but not limited to name, address, facsimile number, business practice). The Customer will be liable for any loss incurred by Atek as a result of the Customer’s failure to comply with this clause.
2.7 Atek may make changes to this Agreement and any credit terms from time to time by notice to the Customer and the Customer is deemed to accept such changes by continuing to accept Services supplied by Atek.
- QUOTATIONS & ORDERS
3.1 The Customer acknowledges that the Price on any Quotation is only for the Goods listed on the Quotation and shall not cover the supply of any other Good to the Customer.
3.2 A Quotation is open for acceptance within the period stated in the Quotation or within seven (7) days of the date of the Quotation if no period is stated.
3.3 Orders for Services will be given by the Customer to Atek in Atek’s nominated format or, if no format is provided, using the Customer’s usual purchase order (PO) form in writing and will specify:
3.3.1 the nature and quantity of each Service required;
3.3.2 the nature and quantity of each Good to be delivered; and
3.3.3 the nominated collection address and the nominated delivery address.
3.4 Atek reserves the right to accept or reject any order it receives. Until Atek accepts in writing any order submitted, Atek is not obliged to provide any Services.
3.5 If an order is accepted by Atek for Services, and the Customer varies the order, the varied order will only be accepted if the Customer reissues the PO for the revised order of the Services.
3.6 If an order is accepted by Atek and the Customer seeks to cancel the order after the date that the order was accepted by Atek, the order may only be cancelled with the written consent of Atek and the Customer will forfeit any deposit paid for that order and cover any related costs, including the costs of returning any Goods, to the cancellation.
- PRICE AND PAYMENT
4.1 At Atek’s sole discretion, the Price will be either:
4.1.1 as indicated on invoices provided by Atek to the Customer in respect of the Services supplied; or
4.1.2 Atek’s price at the date of completion of the Services.
4.2 Atek reserves the right to vary the price stated on the invoices on the date of completion of the Services in order to take into account any increase in shipping costs, product costs or cost of materials and services, fluctuations in currency or exchange rates; or in accordance with its current price list, by notice to the Customer.
4.3 Atek may request payment by the Customer of a non-refundable deposit of up to fifty percent (50%) of the quoted Price prior to the supply of the Services.
4.4 Atek may, in its sole discretion, require payment of the Price by the Customer prior to supply of the Services.
4.5 Time for payment for the Services will be of the essence and will be as stated on the invoice for the supply of the Services to the Customer. If no time is stated on an invoice, payment will be strictly fifteen (15) days following the date of invoice.
4.6 Payment of the Price must be made by cash, bank cheque, credit card, direct credit, or by any other method as agreed to between the Customer and Atek.
4.7 Where there is a delay in Atek’s supply of Services, Atek is entitled torequest a progress payment from the Customer on completion of the part ofthe Services supplied.
4.8 Interest on overdue invoices will accrue daily from the date when payment becomes due, until the date the payment is received by Atek, at a rate of eighteen percent (18%) per annum (and at Atek’s sole discretion such interest will compound monthly) after as well as before any judgment.
4.9 In the event that the Customer’s payment is dishonoured for any reason, the Customer will be liable for any dishonour fees incurred by Atek.
4.10 If the Customer defaults in payment of any invoice when due, the Customer will indemnify Atek from and against all costs and disbursements incurred by Atek in pursuing the debt including legal costs on a solicitor and own Customer basis and Atek’s collection agency costs (if permissible by law). If any account remains overdue after three (3) days then an amount equal to the greater of fifty dollars ($50.00) or ten percent (10%) of the amount overdue (up to a maximum amount of $250.00) shall be levied for administration fees which sum shall become immediately due and payable by the Customer.
4.11 Unless otherwise stated, GST and other taxes and duties that may be applicable will be added to the Price except when they are expressly included in the Price.
- GOODS AND SERVICES
5.1 Atek is engaged by the Customer to perform and supply the Services.
5.2 If Atek is required to attend the Customer’s premises or a third party’s site (Site) in order to perform the Services, the Customer must ensure that the Site is accessible, adequate, suitable and safe having regard to the nature of the Services to be performed on the Site.
5.3 If the Customer fails to comply with clause 5.2, Atek, in addition to any other remedy Atek may have at law or in equity, may either refuse to perform the Services or change the scope and Price of the Services.
5.4 The Customer may by notice in writing to Atek request that Atek change the scope of the Services.
5.5 Unless it is not reasonably practicable for Atek to do so, Atek will give effect to any change to the Services requested by the Customer which is within the general scope of the Services.
5.6 Where a change or variation to the Services is requested by the Customer or required by Atek, Atek will be entitled to an adjustment of the Price by a reasonable amount reflecting the increased costs of performing the Services and a reasonable extension of time for providing the Services.
6.1 Where the Services include the delivery of certain Goods to the Customer, the following provisions apply.
6.2 Collection of the Goods will be from the nominated pick-up/collection address as advised by the Customer at the time or order.
6.3 Delivery of Goods will take place when the Goods are delivered to the nominated delivery address as advised by the Customer at the time or order. Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Agreement.
6.4 Where the Customer expressly requests Atek to collect and/or deliver the Goods to an unattended location, such Goods will be left at the nominated location at the Customer’s sole risk.
6.5 The failure of Atek to deliver Goods or any part of Goods will not entitle either party to treat this Agreement as repudiated.
6.6 Any period or dates quoted for delivery are to be regarded as approximate only and Atek will not be liable for any loss or damage due to failure or delay by Atek to deliver any of Goods promptly or at all as a result of circumstances beyond the control of Atek (including but not limited to supply delays).
6.7 The Customer is not entitled to cancel or refuse the delivery of Goods if the Goods are delayed. Atek will use best endeavors to update the Customer on the approximate date of delivery.
6.8 From time to time Atek may procure Goods from overseas to fulfil an order. The Customer acknowledges and agrees that the delivery of such Goods is subject to any relevant import licenses and other documents and may incur extensive delivery delays.
6.9 At Atek’s sole discretion, the costs of delivery are in addition to the Price and Atek will advise the Customer of the costs of delivery.
6.10 The Customer will make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged, Atek will be entitled to charge a reasonable fee for redelivery.
6.11 Atek may, in its sole discretion, deliver the Goods by separate instalments. Each separate installment will be invoiced by Atek and paid by the Customer in accordance with this Agreement.
7.1 Notwithstanding clause 6, all risk in the delivery of Goods passes to the Customer on delivery of the Goods to the nominated delivery address in accordance with this Agreement.
7.2 The Customer must maintain insurance for the collection and delivery of the Goods.
7.3 If any of the Goods are damaged or destroyed following delivery but prior to title passing to the Customer, Atek is entitled to receive all insurance proceeds payable for the Goods. The Customer will be liable for any claim processing fees.
7.4 Atek will maintain insurance for the performance of the Services.
8.1 Atek and the Customer agree that ownership of the Goods will not pass until:
8.1.1 the Customer has paid Atek all amounts owing for the particular Goods; and
8.1.2 the Customer has met all other obligations due by the Customer to Atek in respect of all contracts and agreements between Atek and the Customer.
8.2 Atek’s title or rights in the Goods will continue until any form of payment by a Customer has been received, honoured, cleared or acknowledged by Atek.
8.3 The parties acknowledge and agree as follows:
8.3.1 where practicable, the Goods will be kept separate and identifiable until Atek has received payment and all other obligations of the Customer are met;
8.3.2 until such time as ownership of the Goods passes from Atek to the Customer, Atek may give notice in writing to the Customer to return the Goods or any of them to Atek. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods will cease;
8.3.3 Atek will have the right of stopping the Goods in transit whether or not delivery has been made;
8.3.4 if the Customer fails to return the Goods to Atek then Atek or Atek’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods;
8.3.5 the Customer is only a bailee of the Goods and until such time as Atek has received payment in full for the Goods then the Customer will hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Atek for the Goods, on trust for Atek;
8.3.6 the Customer will not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Atek;
8.3.7 Atek may issue proceedings to recover the Price of the Goods sold notwithstanding that title to the Goods may not have passed to the Customer; and
8.3.8 until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other Goods, the parties agree that Atek will be the owner of the end Goods.
- AUSTRALIAN CONSUMER LAW
Subject to Atek’s statutory obligations under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL) the following provisions apply.
9.1 Atek’s liability for a breach of a condition or warranty implied by Pt 3–2 Div 1 of the ACL is limited to any one (1) or more of the following:
9.1.1 in the case of goods, any one (1) or more of the following: the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; the payment of the cost of having the goods repaired; and
9.1.2 in the case of Services, the supplying of the Services again; or the payment of the cost of having the Services supplied again.
9.2 Subject to Atek’s statutory obligations under the ACL and except as provided in this Agreement, all express and implied warranties, guarantees and conditions under statute or general law are expressly excluded.
9.3 Atek is not liable to the Customer for any physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of any Services or arising out of negligence or in any way whatsoever.
10.1 In this clause: financing statement, financing change statement and security interest have the meaning given to it by the PPSA; security agreement means the security agreement under the PPSA created between the Customer and Atek by this Agreement.
10.2 The Customer acknowledges and agrees that this Agreement constitutes a security agreement for the purposes of the PPSA and the Customer charges all its assets and undertaking as security for the performance of its obligations under this Agreement.
10.3 Atek and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by this Agreement.
10.4 Unless otherwise agreed to in writing by Atek, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
10.5 The Customer agrees to unconditionally ratify any actions taken by Atek under this clause.
10.6 The Customer must not register a security interest over Atek without its prior written consent.
10.7 To the extent that any monies remain outstanding between Atek and the Customer that indebtedness shall constitute a charge over any real property held by the Customer or its Guarantors. The Customer (and its Guarantors) agree and consent to Atek registering such charge as a charge and constitutes in Atek a caveatable interest in such real property.
- LIABILITY AND INDEMNITY
11.1 The Customer indemnifies and shall keep indemnified Atek and its personnel from and against all claims and losses (including reasonable legal costs), that Atek may suffer or incur as a result of:
11.1.1 any breach of this Agreement by the Customer;
11.1.2 any loss of or damage to property of Atek and any claims by any person against Atek in respect of personal injury or death or loss of or damage to property as a result of the subject matter of this Agreement, which arises out of or as a consequence of the carrying out by the Customer’s obligations under this Agreement and which were caused by or contributed to by the Customer, except to the extent that such claims and losses were contributed to or caused by Atek; and
11.1.3 any act, error or omission by the Customer or by its personnel, in relation to the subject matter of this Agreement, which arises out of or as a consequence of the carrying out by the Customer’s obligations under this Agreement and which were caused by or contributed to by the Customer, except to the extent that such claims and losses were contributed to or caused by Atek.
11.2 Each indemnity in this Agreement is a continuing obligation separate and independent from the Customer’s other obligations and survives any termination of this Agreement.
11.3 Subject to clause 11.4, a party has no liability to the other party for loss of actual or anticipated profit or loss of revenue or for any indirect, special or consequential loss or damage in connection with this Agreement or the performance of the Agreement, whether for breach of contract, in equity, by way of an indemnity or statute, in tort (including negligence) or otherwise.
11.4 Clause 11.3 does not apply to:
11.4.1 the extent that the liability cannot be lawfully limited or excluded;
11.4.2 any damage, loss, expense or liability in respect of personal injury, disease, illness or death of any person.
- RETURNS & WARRANTY
12.1 Returns of any Goods will only be accepted provided that:
12.1.1 the Customer has complied with this Agreement and any Warranty Statement;
12.1.2 Atek has agreed in writing to accept the return of the Good;
12.1.3 the Good is returned at the Customer’s cost within seven (7) days of the delivery date; and
12.1.4 the Good is returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
12.2 Atek will not accept the return of Goods for credit.
12.3 Non-stocklist items or goods made to the Customer’s specifications are under no circumstances acceptable for return.
12.4 Atek’s guarantee for the Services is as set out in the Warranty. Where no such Warranty is provided, Atek guarantees the Services for a period of twelve (12) months from the date of completion and/or delivery.
12.5 Atek does not have to repair, replace or resupply any Services or Goods if such has been modified, disassembled, misused, improperly or inappropriately or negligently installed, stored, handled, operated or repaired, abused, damaged or not maintained in accordance with Atek’s or the manufacturer’s instructions.
13.1 Atek may cancel any order to which this Agreement applies or cancel the supply of Services at any time before the Services are supplied by giving written notice to the Customer. On giving such notice, the Atek will repay to the Customer any sums paid in respect of the Price. Atek will not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Customer cancels supply of Services, the Customer may be liable for any loss incurred by Atek (including, but not limited to, any loss of profits) up to the time of cancellation, which the parties agree shall be not less than twenty-five percent (25%) of the quoted Price
- INTELLECTUAL PROPERTY
14.1 Each party warrants to the other that its performance of this Agreement will not infringe the Intellectual Property rights of any person.
14.2 Atek owns and retains ownership in, or has the right to use, the Intellectual Property rights in relation to the Services and any other Intellectual Property of Atek.
15.2 The Customer acknowledges that their personal information and information provided by the Customer, including information provided to Atek on signing up to the Services and the Customer’s use of the
Services may be held by Atek. This information is collected by Atek for the purpose of operating the Services.
15.3 The Customer consents to Atek using the data contained from and within the Services for further development of the Services. The Customer may at any time, upon written notice to Atek withdraw this consent.
16.1 The Customer acknowledges that the Confidential Information is and will be the sole and exclusive property of Atek.
16.2 The Customer will keep all Confidential Information, confidential and will not disclose any Confidential Information to any person, except:
16.2.1 as required by law; or
16.2.2 with the prior written consent of Atek.
16.3 The Customer will not use any Confidential Information for the benefit of any person except Atek.
16.4 If there is any uncertainty as to whether any information is Confidential Information of Atek, that information must be treated by the Customer as Confidential Information of Atek unless the Customer is informed by Atek in writing to the contrary.
16.5 The Customer must maintain proper and secure custody of all Confidential Information and prevent the use or disclosure of the Confidential Information save as permitted in this agreement.
16.6 This clause will survive the termination of this agreement.
17.1 If any provision of this Agreement will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
17.2 If any provisions of this Agreement are inconsistent with the PPSA, the PPSA will prevail to the extent of that inconsistency.
17.3 This Agreement and any contract to which they apply will be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
17.4 To the extent permitted by law:
17.4.1 Atek will be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Atek of this Agreement;
17.4.2 in the event of any breach of this Agreement by Atek, the remedies of the Customer will be limited to damages which under no circumstances will exceed the Price of the Goods.
17.5 The Customer will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Atek or to withhold payment of any invoice because part of that invoiceis in dispute.
17.6 Atek may licence or sub-contract all or any part of its rights and obligations under this Agreement.
17.7 The Customer agrees that Atek may review this Agreement at any time. If, following any such review, there is to be any change to this Agreement, then that change will take effect from the date on which Atek notifies the Customer of such change. The Customer will be under no obligation to accept such changes except where Atek supplies further Services and the Customer accepts the supply of Services.
17.8 Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond their reasonable control.
17.9 The failure by the Atek to enforce any provision of this Agreement will not be treated as a waiver of that provision, nor will it affect Atek’s right to subsequently enforce that provision.