1. General
The whole of the agreement between InnerTelligence (Aust) Pty Ltd (ACN 163 717 413) (InnerTelligence) and the Applicant referred to in the Credit Application (Customer) are those set out in these Terms and Conditions 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 placing an order for the goods, materials and/or parts supplied by InnerTelligence under these Terms (Goods), the Customer shall be deemed to have read and accepted these Terms and to have agreed that they shall (unless expressly agreed in writing with InnerTelligence) apply to the exclusion of all other written agreements with InnerTelligence. All Goods are charged at the price prevailing at the date of invoice and any GST within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 or other government imposts shall be payable by the Customer in addition.
2. Credit Terms
2.1. Payment is due within 7days of invoiceupon delivery of the Goods, unless otherwise stated in writing by InnerTelligence.
2.2. Proof of payments made in accordance with clauses 2.1 must be sent to: service@innertelligence.com.au.
2.3. If InnerTelligence does not receive payment on the due date, InnerTelligencereserves the right tocharge a monthly accounting fee of 2% of the balance owing.
2.4. InnerTelligence’s express or implied approval for extending credit to the Customer may be revoked or withdrawn by InnerTelligence at any time.
2.5. InnerTelligence can set-off against any money owing to the Customer amounts owed to InnerTelligence 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 the principal owing to InnerTelligence.
2.7. The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on an indemnity or solicitor own client basis) incurred by InnerTelligence for enforcement of obligations and recovery of monies due from the Customer to InnerTelligence.
2.8. Without limitation to clause 2.7, InnerTelligence may at its sole discretion place the Customer’s account in the hands of a professional collection agency. Any fees charged by the chosen collection agency are payable by the Customer and will be considered part of the outstanding balance. The Customer’s account will not be closed until the outstanding balance is paid in full. All account keeping fees will continue to accrue as detailed in clause 2.3 above.
3. Quotations and Pricing
3.1. Prices charged will be according to a current quotation or determined by InnerTelligence by reference to InnerTelligence’s standard prices in effect at the date of the order. This quotation is valid for a period of 30 days, without limiting InnerTelligence’s right to adjust pricing should external factors, including but not limited to, supplier prices, exchange rates or transport costs fluctuate. Subject to clause 15, InnerTelligence reserves the right to increase the prices, however, it will not change any prices for an existing order that has been accepted by it.
3.2. A quotation shall not constitute an offer and is subject to variation without notice byInnerTelligence prior to the Customer’s acceptance of the quotation. The Customer is responsible for ensuring the accuracy of all specifications, details, sizes and quantities which form the basis of a quotation and otherwise in accordance with clause 15. InnerTelligence does not accept any responsibility for any errors in such specifications, details, sizes and quantities and shall fulfil the order in conformity with the information supplied by the Customer.
3.3. Documents requiring signature may be signed in electronic form and are binding from the time a person affixes a signature on the Customer’s behalf.
3.4. Prices in quotations do not include (unless specified): (1) any statutory tax, including any GST, duty or impost levied in respect of the Goods and not allowed for by InnerTelligence in calculating the price; or (2) costs and charges in relation to insurance, packing (other than InnerTelligence’s standard packing), crating, delivery (whether by road, rail, ship or air) and export of the Goods.
3.5. These Terms shall not be affected by any impositions or alterations of customs duties or by decisions of the Australian Customs and Border Protection Service with regard to either classification or value of duty or landing charges. Any such impositions, orInternational equivalent, shall be payable by the Customer.
4. Delivery and Supply
4.1. Freight charges shall be paid by the Customer.
4.2. Any times quoted for delivery and/or supply are estimates only and InnerTelligence 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 Goods, by reason of any delay in delivery/supply or dispatch. InnerTelligence reserves the right to stop supply at any time if the Customer fails to comply with these Terms.
4.3. Any Goods that are not supplied out of stock will be shipped via sea-freight resulting in longer delivery times. At an additional cost, the Customer can request that the Goods be provided via airfreight.
4.4. InnerTelligence may refuse to supply any order in its absolute discretion and may make acceptance of an order conditional upon receiving a satisfactory credit assessment of the Customer.
4.5. All risk of damage, loss or deterioration of any Goods (by any cause) will pass to the Customer upon the earlier of dispatch or expiry of seven (7) days from the date of notification by InnerTelligence to the Customer that the Goods are available for collection.
4.6. The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer’s premises or when InnerTelligence notifies the Customer that the Goods are available for collection.
4.7. If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer: –
4.7.1. Shall be liable for any additional cost, charge and expense incurred by InnerTelligence in complying with the Customer’s direction; and
4.7.2. Shall pay for the whole of the invoiced value of the Goods pursuant to clause 3 notwithstanding the staggered deliveries or that the Customer may not have signed a receipt for the Goods.
4.8. If the Customer is unable or fails to accept delivery of the Goods, InnerTelligence may deliver them to a place of storage nominated by the Customer and, failing such nomination, to a place determined by InnerTelligence. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by InnerTelligence on account of storage, detention, double cartage/delivery or similar causes.
5. Property
5.1. Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to InnerTelligence from time to time: –
5.1.1. All sums outstanding become immediately due and payable by the Customer to InnerTelligence if the Customer makes default in paying any other sums due to InnerTelligence, 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.
5.1.2. The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for InnerTelligence (returning the same to InnerTelligence on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
5.1.3. The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of InnerTelligenceprovided that there shall be no right to bind InnerTelligence 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 Goods (or any portion of them) shall be held on trust for InnerTelligence pursuant to the fiduciary relationship.
5.1.4. In the event that the Customer incorporates or transforms the Goods (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 InnerTelligence. The Customer expressly acknowledges that the Relevant Proportion shall be equal to the dollar value of the Goods 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.
5.1.5. InnerTelligence is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage. The Customer agrees that for this specific event no legal liability will be applied to InnerTelligence. Denial of entry for this purpose will be treated at theft of goods and reported to the police.
5.2. In addition to any lien to which InnerTelligence may, by statute or otherwise, be entitled, InnerTelligence 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 the possession of InnerTelligence (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.
6. Personal Property Security Interest
6.1. The Customer grants a security interest in the Goods and the proceeds (as defined in the Personal Property Securities Act 2009 (PPSA) to secure the obligation to pay the purchase price of the Goods and other of its obligations to InnerTelligence under theseTerms (together the “Indebtedness”). The Customer warrants that the Goods are not purchased for personal, domestic or household purposes.
6.2. Where the Goods and/or proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the goods present and after acquired by the Customer, of which the Goods form part, to the extent required to secure the Indebtedness.
6.3. The Customer waives any right to receive notice in relation to any registration or amendment to a registration on the Personal Property Security Register (PPSR). At the Customer’s own expense, it will provide all reasonable assistance and relevant information to enable InnerTelligence to register on the PPSR and generally to obtain, maintain, register and enforce the security interests created by these Terms.
6.4. Any payments received from the Customer shall be deemed to be made and applied by InnerTelligence in the following order (unless InnerTelligence otherwise determines): (1) to any obligation owed by the Customer which is unsecured, in the order in which the obligations were incurred; (2) to any obligations that are secured, but not by a purchase money security interest (PMSI), in the order in which those obligations were incurred (3) to obligations that are secured by a PMSI, in the order in which those obligations were incurred.
6.5. Until the Customer has paid all money owing to InnerTelligence, the Customer must at all times ensure that (1) all Goods, while in the possession of the Customer, can be readily identified and distinguished, and/or (2) all proceeds (in whatever form) that the Customer receives from the sale of any of the Goods are readily identifiable and traceable.
6.6. Subject to clause 5.1.3, if the Goods are held by the Customer as inventory (as defined in the PPSA), then the Customer may sell or lease the Goods in the ordinary course of business. Otherwise, until the Customer has paid all money owing to it the Customer must not sell or grant a security interest in the Goods without the Customer’s written consent.
6.7. To the extent permissible by law, the Customer agrees that the following provisions of the PPSA will not apply and it will have no rights under them: Section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notice to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142; section 143.
6.8. Section 115(7) of the PPSA allows for the contracting out of provision of the PPSA, the following provisions of the PPSA will not apply and the Customer will not have any rights under them: section 127; section 129(2), (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
6.9. Unless otherwise agreed and to the extent permitted by the PPSA, the parties agree not to disclose any information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. The Customer waives any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
7. Availability of Stock
Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless it is the Customer’s stated standard policy not to accept back orders or it specifically marks its order, “Do Not Back Order”. Deliveries at any time are subject to availability of stock and InnerTelligence will not be liable for any charges due to product unavailability.
8. Returns, Cancellations and Claims
8.1. Returns – The Customer shall not return any Goods to InnerTelligence without obtaining prior authorisation from InnerTelligence.
8.2. Change of mind – A request to return Goods for change of mind will not be accepted.
8.3. Cancellation – No cancellations or partial cancellation of an order by the Customer shall be accepted by InnerTelligence 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 InnerTelligence, will indemnify InnerTelligence against all loss, without limitation.
8.4. Restocking fee – If an order is cancelled after 48 hours of the acceptance of the quotation, the Customer must pay Innertelligence a restocking fee of 10% of the total amount of the order.
8.5. Complaints – Subject to clause 11, all complaints, claims, or notification 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 InnerTelligence in writing within 7 business days of delivery. Otherwise, the Customer shall be deemed to have accepted the Goods as being fit for their intended purpose.
9. Consent to Credit Check – Privacy Act 1988 (Privacy Act)
9.1. By signing the Credit Application, the Customer acknowledges and agrees that the Privacy Act allows InnerTelligenceto give a credit reporting agency certain personal information about the Customer at any time after signing such form.
9.2. The Customer acknowledges and agrees that InnerTelligencemay make such enquiries as it deems necessary to investigate the Customer’s credit worthiness from time to time, including (but without limiting the generality of the foregoing) the making of enquiries withpersons nominated as trade references, external accountants, bankers or other credit providers or credit reporting agency (Information Sources). The Customer authorises the Information Sources to disclose to InnerTelligencesuch information concerning the Customer which is within theirpossession and is requested by InnerTelligencein relation to the Customer’s credit worthiness. Upon written request, the Customer will provide InnerTelligence with financial information relating to the Customer.
9.3. The Customer agrees that the information provided on the Credit Application may be disclosed to a credit reporting agencyor any other interested person in accordance with the Privacy Act (as amended).
9.4. InnerTelligenceshall, and shallensure that its employees, agents and advisers to whom the information is disclosed, only use such information for the purposes ofassessing the Customer’s ongoing credit worthiness and must keep the existence and the terms of that information confidentialexcept where: (1) the information is public knowledge (not being due to a breach of theseTerms); or (2) disclosure is required by law or a regulatory body.
9.5. No other use of the Customer’s personal information will be made without consent. A request to access, update or correct anyinformation should be directed to: service@innertelligence.com.au.
10. Notification
The Customer must notify InnerTelligence in writing within seven (7) days of: –
10.1. Any alteration of the name or ownership of the Customer.
10.2. The issue of any legal proceedings against the Customer.
10.3. The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
10.4. Change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to InnerTelligence for all Goods supplied to the new owner by InnerTelligence until notice of any such change is received.
11. Warranties
11.1. Insofar as the Goods relate to equipment, InnerTelligence guarantees that the Goods provided will be fit for their intended purpose (Guarantee) for twelve (12) months (1) from the date of installation; or (2) if installation is not completed within eight (8) weeks from the date of Purchase Order, from the date of Purchase Order.
11.2. The Guarantee in clause 11.1 is only valid if the Customer uses consumables, spare parts and labour supplied by InnerTelligence. Any use of consumables, spare parts or labour not supplied by InnerTelligence will void the Guarantee with immediate effect.
11.3. In addition to covering the normal failure of components, the Guarantee in clause 11.1 also covers the spare parts, travelling and labour costs associated with the replacement of any spare parts provided: (1) the Customer is located within 50km of any InnerTelligence service centre; and (2) The call out is attended to within normal office hours (being Monday to Friday, 08:30 – 17:00).
11.4. Notwithstanding clause 11.3, the Customer is liable for the travelling and labour costs associated with the replacement of any spare parts if: (1) the Customer is located more than 50km from any InnerTelligence service centreto be calculated based on the distance to be travelled in excess of 50km; (2) the call out is outside normal office hours (that is, being made Monday to Friday between 17:00 – 08:00 or on a Weekend/Public Holiday); (3) the call out is not due to a component or equipment failure; or (4) the damage is the result of misuse of equipment, neglect, malicious damage or operator influence in which case the Customer is also liable for the cost of any spare parts.
11.5. Nothing in this clause 11 is intended to restrict or exclude any warranty implied and that by law cannot be excluded given by InnerTelligence in respect of Goods supplied. To the full extent permitted by law, InnerTelligence will not be liable under any circumstances for consequential damages of any nature whatsoever.
11.6. The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesperson and professional advisers retained by it to provide advice and assistance on the suitability of the Goods for specific purposes and procedures and, in this respect, shall indemnify InnerTelligence from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against InnerTelligence, except if the Customer is a consumer for the purposes of the Australian Consumer Law or these Terms are deemed to be a small business contract under the Australian Consumer Law.
11.7. The Customer warrants to InnerTelligence that it is purchasing Goods as the principal and not as an agent.
12. Intellectual Property
12.1. All intellectual property rights (including all rights resulting from intellectual activity and includes copyright, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and all rights and interests of a like nature, including but not limited to methods and techniques, together with any documentation relating to such InnerTelligence’s rights and interests), including those developed during the supply of the Goods remain the sole property of InnerTelligence at all times.
12.2. If InnerTelligence terminates these Terms, it may immediately reclaim any material incorporating its intellectual property and the Customer grants it an irrevocable licence to enter upon the Customer’s premises to reclaim such material without incurring liability to the Customer or any other person.
13. Force Majeure
InnerTelligence 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 Goods impossible, where all money due to InnerTelligence shall be paid immediately and, unless prohibited by law, InnerTelligence may elect to terminate theseTerms.
14. Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of InnerTelligence 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 InnerTelligence to the Customer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a solicitor own client basis) incurred by InnerTelligence and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
15. Variation
15.1. InnerTelligence may vary these Terms by providing written notice to the Customer (by email, conventional mail or by posting the amended terms on the website).
15.2. If the Customer are a Consumer, or these Terms are deemed to be a Small Business Contract, and the Customer does not deem the variation acceptable, the Customer may elect not to proceed with the purchase of the Goods ordered before the date of the variation, but which are intended to be subject to the variation.
15.3. If the Customer is not a Consumer and these Terms are not deemed to be a Small Business Contract, the Customer agrees that the variation applies from the date of receiving notice of the varied Terms.
16. Failure to Act
InnerTelligence’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or InnerTelligence’s failure to exercise any right or remedy available under these Terms or at law, or InnerTelligence’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 InnerTelligence’s right to demand timely payment of future obligations or strict compliance with the Terms.
17. Legal Construction
17.1. These Terms shall be governed by and interpreted according to the laws of Victoria and InnerTelligence and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
17.2. Notwithstanding that any provision of these 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 these Terms shall continue in full force and effect.