Terms and Conditions

Escape IT's Terms & Conditions of Trade

IN CONSIDERATION OF Escape IT, ABN 60 158 495 737 (hereinafter referred to as “the Company”) providing commercial credit facilities any party completing the Company’s Credit Application (hereinafter referred to as “the Customer”)

(i)  The Customer acknowledges and agrees that the following applies to and forms part of any contract for the supply of Goods and/or Services by the Company and that these General Terms and Conditions take precedence over any terms and conditions which may be contained in any document provided by the Customer. Any request from the Customer to the Company for the supply of Goods and / or Services shall constitute acceptance of these general terms and conditions.

(ii) The Customer hereby charges in favor of the Company all its estate and interest in any land and in any other assets, whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest, with payment of all monies owed by the Customer and consents to the lodging by the Company of a caveat or caveats which note its interest in or over any such land or other caveatable property;

(iii) The Customer acknowledges that where the Customer consists of more than one party or entity, liability shall be joint and several.

TERMS

These terms and conditions, including any Credit Limits set by the Company, are effective from the date of acceptance by the Customer and may be amended or superseded from time to time by notice given by the Company by any means. Unless or except specifically excluded herein, the company and the Customer retain any rights and remedies available to them in any prior or pre-existing agreement.

 “Goods” and/or “Collateral” shall mean all goods and/or services supplied by the Company to the Customer, or ordered by the Customer but not yet supplied, and includes goods and/or services described on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which the Company may intend to register a Security Interest.

 “Price” shall mean the cost of the Goods as referred to in the Company’s price lists, prepared quotes and / or specific arrangements and shall be subject to change from time to time without notice.

1.             Jurisdiction

a.             This agreement shall be construed in accordance with laws of the State of South Australia and, where applicable the                 Commonwealth of Australia and the Customer submits to the non-exclusive jurisdiction of the courts of South Australia.

b.             The Company shall have exclusive right to nominate the Court in which any legal action is to be commenced and conducted. 

2.             Personal Property Securities Act (2009)

a.             The Customer consents to the Company effecting a registration on the PPSA register (in any manner the Company deems appropriate) in relation to any security interest arising under or in connection with or contemplated by these terms.

b.             The Customer waives its right to receive notice of a verification statement in relation to any registration by the Company on the register.

c.             The Customer agrees to promptly execute any documents, provide all relevant information, fully cooperate with the Company and do any other act or thing that the Company requires to ensure that the Company has a perfected security interest in, and has priority over any other security interests in, the Goods or otherwise.

d.             The Customer agrees that, until all monies owing to the Company are paid in full, it shall not sell or grant any other Security Interest in the Goods.

e.             The Customer will not register a financing change statement in respect of the security interest without the Company's prior written consent. 

f.              If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with these terms, the Customer agrees that the following provisions of the PPSA will not apply to the enforcement of these terms: section 95 (notice of removal of accession), to the extent that it requires the Company to give a notice to the Customer;  section 96 (when a person with an interest in the whole may retain an accession);  subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires the Company to give a notice to the Customer; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); subsection 134(1) (retention of collateral); section 135 (notice of retention); section 142 (redemption of collateral); and, section 143 (reinstatement of security agreement).

g.             Notices or documents required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA.

h.             The Company agrees with the Customer not to disclose information of the kind mentioned in subsection 275(1) of the PPSA except in circumstances required by paragraphs 275(7)(b)-(e).

i.              If the Company receives any notice in relation to the Customer under section 64 of the PPSA, all outstanding amounts may, at the Company’s discretion, become immediately due and payable.

j.              The Customer agrees to reimburse, upon demand, the Company for all costs and/or expenses incurred or payable by the Company in relation to registering or maintaining any financing statement, releasing in whole or in part the Company's security interest or any other document in respect of any security interest;

k.             In these terms, the following words have the respective meanings given to them in the PPSA: commingled, financing statement, financing change statement, perfected, proceeds, register, registration, security interest and verification statement.

3.             Payment Terms

a.             At the Company’s sole discretion, a deposit may be required prior to any supply.

b.             Credit Account Customers are required to pay all amounts for purchases, in full and with no deduction or set-off, in                 accordance with the prescribes fourteen or thirty days payment terms, such terms to be advised by the Company when an account is established.

c.             In the event of a dispute, the complete undisputed portion of the account must be paid in accordance with the Payment Terms.

d.             Should it be considered necessary by the Company to incur legal and/or any other expenses, including any such expenses to any debt collection agency, in obtaining, or attempting to obtain, payment for any amount due by the Customer, the Customer shall be liable for all such expenses. The Customer acknowledges that those expenses may be calculated on a commission basis at a percentage rate of up to 25% of the amount due and expressly agrees to pay those expenses irrespective of the amount of work actually performed by the agency.

e.             The Customer agrees that the Company may, at its absolute discretion, apply any amounts received from the Customer toward amounts owing to the Company in such order as the Company may determine.Interest on overdue amounts may be charged at a rate of 2.0% per calendar month or part thereof and the Customer shall be liable for, and expressly undertakes to pay, all such interest.

f.              Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer’s indebtedness and, in such an event, the parties are to be restored to rights which each respectively would have had if the payment had not been made.

g.             The Customer shall be liable for, and expressly undertakes to pay, all fees (including an Administration Fee in an amount to be set from time to time by the Company) for all costs incurred as a result of any cheque or electronic banking transaction being dishonored for whatever reason.

4.             Delivery

a.             The Company shall not be liable for any loss or damage, including consequential loss or damage, arising from delay in delivery or failure to deliver Goods & Services, either whole or in part, due to circumstances beyond its control.

b.             The Company is not responsible for insuring shipments, nor for any loss or damages to Goods during shipment and recommends the Customer obtain insurance for shipments.

5.             Cancellation

a.             The Company may cancel the delivery of Services at any time before delivery by giving notice to the Customer by any means.

b.             The Company shall not be liable for any loss or damage, including any consequential loss or damage, arising from such cancellation.

c.             The Customer may cancel the delivery of Services at any time before delivery by giving notice to the Company by any means.

d.             In the event that the Customer cancels delivery of Services, the Customer shall be liable for any costs incurred by the Company up to the time of the cancellation including, but not limited to, any re-stocking fees incurred by the Company.

6.             Limitation of Liability

a.             The liability of the Company to the Customer for any reason related to the performance of Services under this agreement shall be limited to the replacement or re-supply of the Services or the amount paid or payable by the Customer in respect of the particular Services.

7.             Licenses

a.             The customer is solely responsible for acquiring and maintaining valid software licenses for authorized and installed software products (whether installed on your machines by the Company as individual products or part of a software image, or by any other party or method).

8.             Intellectual Property Rights

a.             The Company retains all right, title and interest in any pre-existing intellectual property that is owned by the Company processes or any copyrightable material originated and developed by the Company specifically for the Customer as part of the Services to be performed under this Services Order shall be owned by the Customer.

b.             The Company hereby grants the Customer a worldwide, non-exclusive, royalty-free, perpetual, without the right of sublicense, license to use the Company’s IP in the course of the Customer’s internal, business operations.

9.             Security and Backup

a.             The Customer is responsible for the security of their network, including the backup and other protection of their system and data, against loss, damage or destruction by third parties.

b.             The Company will not be liable for any damages resulting from security breaches of your network or data, except to the extent caused by the Company’s sole negligence or wilful acts or omissions.

10.          Acceptance

a.             Services will be deemed accepted upon completion unless otherwise specified.

b.             Any subsequent additions, deletions or modifications to a Services Order are not binding unless agreed upon in writing by authorized representatives of both Parties.

11.          Limited Warranty for Services.

a.             Services performed by the Company will:

                (i) be performed in a timely, competent, professional and workmanlike manner;

                (ii) substantially conform to the written specifications under the Services Order for 14 calendar days from completion, or for such other warranty period as may be indicated in a Services Order;

                (iii) be in compliance with all laws, rules and regulations applicable to the Company’s performance under the Services Order.

12.          Remedies.

The following are the parties' respective sole and exclusive obligations, and sole and exclusive remedies, with respect to any action for breach of limited warranty.

a.             The Customers remedy for non-conforming Services discovered upon completion or during the warranty period shall be the re-performance of any deficient Services at the Company’s expense.

b.             No re-performance shall extend any warranty period. If the Company is unable to remedy any deficient Services within 30 days of notice or such additional time as may be agreed upon by the Parties.

c.             The Company will, at its option, provide a credit or refund of any fees paid for the specific non-conforming Services.

d.             If the customer’s use of Work Product delivered under a Services Order is, or is likely to be, enjoined due to a third party Claim of infringement or misappropriation, the Company will, at its expense,

  1. Procure for the Customer the right to continue using the Work Product, or
  2. Replace or modify the Work Product to make it non-infringing.
  3. If neither of the foregoing alternatives is commercially reasonable, the Company shall refund any fees paid for the infringing Work Product.

13.          Indemnification for Services

a.             Each party will indemnify, defend and hold harmless the other party, its officers, directors, employees, agents, and affiliates from and against any claims, demands, loss, damage, or expense, including legal fees, (collectively, "Claims") relating to bodily injury or death of any person or damage to tangible personal property to the extent proximately caused by the gross negligence or willful acts or omissions of the indemnifying party, its officers, directors, employees, agents, and affiliates in performance of the Services Order.

b.             The Company will indemnify and defend the customer, from and against any third party Claims that any Work Product, as defined under the Services Order, infringes any patent, copyright, trademark, or trade secret.

c.             The Company will pay all damages, costs, and expenses finally awarded to third parties against you in such action or agreed to in settlement.

d.             The Company will not be liable for any infringement claim if:

                (i)            The Work Product was created in accordance with your sole design or specifications,

                (ii)           The Customer continues using the Work Product after receiving notice from the Company to discontinue use, or

                (iii)          The Customer altered the Work Product, or 

                (iv)          The Customer used the Work Product in combination with any other product, program or data not authorized by the Company or its agent, and such infringement claim would not have occurred absent such combination.

e.             In the event that any Claim is made or suit is commenced by a third party against a party or other entity entitled to indemnity under this Section (an "Indemnified Party"), the Indemnified Party shall:

                (i)            Give prompt written notice of such demand, claim or suit to the party that has an indemnity obligation (the "Indemnifying Party"); and

                (ii)           provide reasonable assistance and cooperation in the defence and settlement of any claim or legal proceeding.                

                (iii)          Notwithstanding the foregoing, if the Indemnifying Party fails to assume its obligation to defend, the Indemnified Party may do so to protect its interests and seek reimbursement from the Indemnifying Party.

14.          Return Policy

Hardware: If permitted by the manufacturer's or distributors return policy, hardware, accessories, peripherals and parts may be returned if the packaging is unopened and still in the manufacturer's sealed package, and returned within 3 days from the date of shipment. If the publisher does not allow the return of Hardware, the Customer may not return the software to the Company.

Software: Software may be returned if permitted by the publisher's return policy, If the publisher does not allow the return of software, the Customer may not return the software to the Company.

Damaged Products. Packages that are obviously damaged should be refused at the time of original delivery attempt. If damaged Products are accepted from the carrier, the Customer is required to contact the Company’s Client Services within 5 days after receipt of shipment to arrange for a carrier inspection and a pickup of the damaged Products. All damages should be noted on the carrier delivery record prior to the driver leaving your premises. Please save the Product and all original box and packaging. Timely receipt of this information is necessary to file a damage claim with the freight carrier and avoid delays in returns and replacements.

Order Discrepancies. All order discrepancies (shortages, mislabeled product or overages) must be reported to the Customers Client Services Department within 5 days of receipt of shipment.

15.          Privacy

The Company is committed to protecting your privacy. 

We will comply with the Privacy Amendment (Enhancing Privacy Protection) Act 2012 which amends the Privacy Act 1988 (Cth). In accordance with the Australian Privacy Principles as contained in the Act, and as reflected in the Company’s Privacy Policy, persons will be given access to their personal information upon request. The Company uses the types of personal information collected to enable it to supply customers with its products and services and for assessing Applications for Commercial Credit, managing accounts and, if necessary, assessing its risk in, and collecting debts. This information may be disclosed to the Company’s associated or related entities, parties related to the Customer’s employment (e.g. referees and others as set out in the Privacy Policy) contractors, other credit providers, whether or not an account is overdue and, if necessary, its risk insurers, debt collectors and credit reporting agencies. If all or part of the information requested is not provided, the Company may not be able to consider any application or to provide credit facilities. Customers who have any concerns about, or would like a copy of, the full Privacy Policy are requested to direct them to the Privacy Officer, 233 South Road, Mile End SA 5031.

I/We acknowledge and give consent that the Company may make enquiries as to the credit and financial situation of me or any of us and further consent to the use of any information obtained as a result of those enquiries, including information disclosed in the Credit Application, as the Company reasonably sees fit from time to time, for purposes including but not limited to;

a.             passing the information on to a credit reporting agency,

b.             passing the information on to a debt collector,

c.             obtaining further personal information, including consumer and/or commercial credit information, relating to me or any of us from another body for any use reasonably connected with provision of credit or the collection of debt subject to the provisions of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 which amends the Privacy Act 1988 (Cth).

d.             Further, that the consent hereby given shall remain in force until all monies owing have been paid in full and the Customer no longer has an open account with the Company. 

16.          Unfair Contract Terms

Small Business applicants are advised that, should any of the Terms or Conditions contained herein be considered by them to be ‘unfair’, they should contact the Company to further discuss and negotiate before continuing to trade.

17.          General

a.             The Company accepts no responsibility for changes in any law which may affect supply.

b.             Neither the Company nor the Customer shall be liable for any breach of any provision of any contract between them arising from an act of their respective God, natural disaster, terrorism, war or any other, specified or un-specified, occurrence beyond the control of either party.

c.             The invalidity or unenforceability of any provision of these General Terms and Conditions shall not affect the validity or enforceability of the remaining provisions.

d.             The Customer acknowledges that all purchases are made relying solely upon the Customer’s own skill and judgment.

e.             The Customer warrants that all purchases under this agreement are for commercial purposes only and, accordingly, the provisions of the Consumer Credit Act will not apply.

f.              The Company obtains certain data directly from the manufacturer, publisher or supplier of Products and is not responsible for pricing, typographical or other errors in any such data. In addition, availability of third party Product is subject to change without notice. The Company reserves the right to cancel orders related to such errors or Product discontinuation or unavailability, and to correct this web site at any time, including pricing errors not detected until after the Company’s        confirmation or e-mail response.

g.             The Customer acknowledges the Company may update and amend these terms and conditions from time to time as published on the Company website www.escapeit.com.au and is bound by the current terms and conditions at all times.