Terms and Conditions – Sale of Equipment

Application
1. These Terms and Conditions of Sale of Equipment apply to the ordering, purchase, fulfilment and delivery of Equipment ordered by the Client from Comtec together with the:
  1. Refund, Return, Repair Policy;
  2. Shipping Policy;
  3. Consumer Guarantees;
  4. Privacy Policy; and
  5. Client Credit Application
    (the Agreement)
    despite any contrary terms constitutes the entire agreement between the parties to the exclusion of all other terms and conditions. If the Client does not accept the Agreement, the Client must refrain from making a purchase.
2. By ordering the Equipment, the Client accepts the terms of Agreement and is bound by them, and an agreement is formed between Comtec and the Client.
3. The terms forming part of the Agreement may be amended by Comtec at any time without notice. Purchases following such amendment will represent an agreement by the Client to be bound by the Agreement as amended. We recommend the Client review the Terms and Conditions of Sale of Equipment for any amendments each time the Client uses the Website and before placing any Order or making a purchase of Equipment.
4. Should Comtec choose to provide the Client with notice of amended terms, the Client agrees to receive email notification of the amendments from Comtec or a selected third party.
5. No representations, inducements, promises or agreements between the parties will be of any force or effect in varying these terms of Agreement.
Party Representatives
1. The parties acknowledge and agree that:
  1. the individual named in the Order as the party’s representative is authorised to exercise all rights, powers, authority and functions of the party it represents under this Agreement;
  2. either party may, at any time, replace its nominated representative and must notify the other party of any such replacement; and
  3. Comtec is entitled to charge an additional fee for additional work resulting from failure of the Client to nominate a Client Representative as well as any inconsistent or multiple Client directives including directions from persons other than the Client Representative.
Relationship
1. The parties are independent contracting parties with rights, obligations and liabilities as specified in this Agreement. Nothing in this Agreement will be construed as establishing any partnership, joint venture, employment or other relationship between the parties.
Corporate Authority
1. Each party hereby represents and warrants to each other party that if it is a corporate entity:
  1. it is validly existing under the laws of its place of incorporation;
  2. the entering, execution and delivery of this Agreement has been properly authorised by all necessary corporate or other action required by it;
  3. it has full corporate power and lawful authority to execute and deliver this Agreement and to perform or cause to be performed its obligations under this Agreement; and
  4. this Agreement does not conflict with or result in the breach of or default under any provision of its constitution or any material term or provision of any agreement or deed or any writ, order or injunction, judgment, law, rule, or regulation to which it is a party or is subject or by which it is bound.
Trust Authority
1. Each party hereby represents and warrants to each other party that if it has entered into this Agreement as the trustee of a trust (Trust):
  1. the party is validly appointed as the trustee(s) of the Trust, is not in breach of its obligation as trustee and no circumstances exist pursuant to which it may be removed as trustee of the Trust;
  2. this Agreement is duly executed in proper exercise of the powers of the party as trustee of the Trust and all formalities required by the trust deed of the Trust in connection with this Agreement have been complied with; and
  3. the execution and performance of this Agreement is for a proper purpose of and provides commercial benefit to the Trust.
Promotional Material, Performance, Equipment Specifications
1. The specifications, descriptions and illustrations contained on the Website, any catalogues, price lists and other advertising material are intended merely to present a general idea of the Equipment described therein.
2. All drawings, catalogues, printed matter are informative only and weights, measurements, powers, capacities or other particulars of Equipment offered are stated in good faith and, subject to the terms hereof. Inaccuracies shall not void or violate these Terms and Conditions of Sale nor be made the basis of any claim against Comtec or justify rejection of the Order or of the Equipment.
3. The Client acknowledges that it has the sole responsibility of satisfying itself that the Equipment is suitable for the use of the Client, or any contemplated use of the Client, and that it has conducted its own investigations and has not relied upon any information, statement, advice or representation by the Client of or in relation to:
  1. the operating and/or performance parameters of the Equipment;
  2. the outcomes that the Equipment may achieve;
  3. the suitability of the Equipment to any application, installation or physical environment; and
  4. the appropriateness of the use of the Equipment outside Australia.
4. The Client acknowledges and agrees that:
  1. all drawings, illustrations, specifications, dimensions, particulars of performance, designs, plans, computations, descriptions, weights, measurements and statements advertised or submitted to the Client by Comtec are, unless otherwise indicated, estimates only and are Comtec’s property and must not be copied or disclosed in any way or used for any purpose whatsoever without Comtec’s prior written consent;
  2. any representation as to the operating parameters of the Equipment are representative of assumed conditions in a well-managed plant, with experienced, adequate and efficient operators, appropriate services, and proper use of satisfactory materials;
  3. the actual performance of the Equipment in situ might be affected by external factors (including, without limitation, environmental conditions) beyond Comtec’s control;
  4. incorrect and/or negligent installation, application or use of the Equipment may cause loss of life, injury and/or damage to property; and
  5. Comtec makes no representation, warranty or assurance as to any of the matters listed in clause 6.3 and Comtec will not be liable for any loss or cost arising from those matters to the maximum extent permitted by law.
Orders
1. Representations of Equipment for sale made by Comtec do not constitute an offer to sell but an invitation to treat.
2. (Order) An Order includes a verbal or written order for the supply of Equipment placed by the Client and accepted by Comtec (whether by way of a third-party supplier system/portal such as Coupa or otherwise), or a quotation given by Comtec and accepted by the Client at the price advertised and/or quoted in accordance with the terms of the Agreement by:
  1. the Client confirming the order details (verbally or in writing) or executing an order form or quotation for the Equipment with Comtec;
  2. the Client making payment in full (plus any applicable shipping delivery charges) or as otherwise noted on the order or quotation; and
  3. the acceptance of that order by Comtec. Orders will be deemed to have been received by Comtec at the time Comtec sends an Order confirmation to the Client’s nominated e-mail address.
3. (Website Order) The Client and Comtec enter into a contract for the sale and supply of Equipment by the Client making an offer to purchase Equipment at the price advertised on the Website and in accordance the terms of the Agreement by:
  1. placing an electronic Order for the Equipment using the Website;
  2. the Client confirming the Order details in accordance with the procedure on the Website;
  3. the Client making payment in full (plus any applicable shipping/delivery charges) on the Website; and
  4. the acceptance of that offer by Comtec. Orders will be deemed to have been received by Comtec at the time Comtec sends an Order confirmation to the Client’s nominated email address.
4. A quotation by Comtec is subject to correction by Comtec at any time for errors and omissions.
5. Without limiting clause 7.4, Comtec may withdraw a quotation or vary any part of a quotation, including without limitation any price specified in the quotation, at any time.
6. Unless otherwise agreed in writing by Comtec, a quotation is open for acceptance for 30 days from date of the quotation.
7. Once the Client has placed the Order, the Client cannot cancel or revoke the Order, unless expressly provided for in these Terms and Conditions of Sale of Equipment.
Supply, Delivery, Collection of Equipment
1. Comtec may suspend or cancel supply or delivery of the Equipment to the Client if:
  1. Comtec is unable to source sufficient materials necessary to supply the Equipment; or
  2. Comtec is otherwise prevented by circumstances outside its control from supplying the Equipment.
2. Comtec reserves the right and may, in Comtec’ s absolute discretion, decline to accept an Order and may cancel the Order at any time prior to delivery of the Equipment.
3. In the event of a cancelled Order not delivered to the Client, Comtec has no liability to the Client for any loss or damage of any kind (including consequential loss or damage, including loss of profit or loss of opportunity). However, Comtec will, in relation to that Order, refund any portion of the Price already paid to the extent it exceeds the aggregate of all amounts then owing to Comtec by the Client. The Client will be provided with e-mail confirmation of the cancellation and refund.
4. If Comtec cancels an Order, the Client must pay to Comtec all costs which Comtec, its suppliers and/or subcontractors have incurred directly or indirectly, or for which they are liable, under the terms of the Order. Comtec will not require payment for any standard part or material which it is able to use in any other order. Any prepayment made by the Client will be set off against sums due to Comtec under this clause 8.3.
5. Any representations made about stock availabilities are accurate to the last known stock level and are subject to change.
6. Comtec shall not be liable for any delay in performing any of its obligations under these Terms and Conditions of Sale and if such delay is caused by circumstances beyond the reasonable control of Comtec, Comtec shall be entitled to a reasonable extension of time for the performance of such obligations.
7. If the Client have any query about the progress of the Order, please contact the Customer Support Team. Please provide the Order number.
Time
1. Comtec makes no warranty as to the time of supply or delivery of the Equipment. All time periods and dates specified by Comtec are indicative and estimates only. Delay in supply or delivery does not affect the Client’s obligation to accept or pay for the Equipment.
2. Comtec is not liable to the Client for any loss or damage (including consequential loss or damage) resulting from a delay or failure to notify the Client of a delay.
3. An indicative or estimated timeframe for supply or delivery of Equipment by Comtec to the Client commences from the later of the:
  1. date of acceptance of the Order;
  2. the date of payment of the first instalment of the Price due under the terms of the Order; and
  3. the date of receipt by Comtec from the Client of all samples, information, drawings, licences and consents necessary to proceed with the Order.
4. Comtec will not deliver Equipment to PO Box addresses.
5. Where the Client has given written authority for Equipment to be delivered without a signature, any and all included insurance cover will be voided.
6. The couriers or postal services nominated by Comtec will deliver Equipment during local business hours (9am to 5pm, Monday to Friday).
7. Comtec reserves the right to not ship to remote or rural locations.
Price
1. Prices shown are in CHF, Euro, US dollars, Australian dollars (or Australian dollar equivalent) and exclude GST where applicable. The Price quoted in an Order is for the supply of the Equipment Ex Works (from the place of supply) (and does not include freight, delivery and handling charges), unless otherwise stated on the Order or as agreed in writing by Comtec. Prices are subject to change without notice.
2. A published saving in respect of any Equipment is by reference to the lower of the recommended retail price of the manufacturer or the normal ticketed price of Comtec.
3. Unless otherwise stated, any accessories shown in any image of Equipment are not included in the price.
4. Comtec reserve the right to correct any errors published on the Website and any promotional material.
5. The Client must pay to Comtec the price for the Equipment (Price) as specified in the Order.
6. The Price quoted in an Order applies only to the quantities and deliveries specified in the Order.
7. Unless otherwise stated in an Order, the Price quoted is based on the cost of material, labour, foreign currency exchange rates, freight and delivery costs at the date of quotation. Should variations occur either by rise or fall in either of these costs prior to delivery of the Equipment, Comtec may adjust the quoted Price accordingly by notice in writing to the Client.
Additional Charges
1. Unless otherwise stated in the Order or agreed in writing with Comtec, in addition to any Price payable, the Client must pay to Comtec:
  1. any costs of and fluctuations in the delivery, unloading, reloading, collection and installation of the Equipment;
  2. any costs caused by inaccuracies arising through orders, instructions or information given by the Client to Comtec;
  3. any costs of from changes to installation or delivery requirements of Comtec prior to, during, or after installation or delivery of the Equipment;
  4. any applicable tax, Goods and Services Tax (GST), stamp duty, duty, fee, levy or charge of any nature whatsoever imposed by any semi government or government authority;
  5. any amounts in fluctuations of the foreign exchange rates; and
  6. any other charges detailed in the Order and associated tax invoice.
2. If the Client requests operational guidance or training on the use of the Equipment, Comtec may provide such guidance or training to the extent that Comtec is able and the Client agree to pay the cost for the provision of those services at the standard hourly rates as determined by Comtec from time to time and as otherwise agreed between the Client and Comtec. That engagement and service will be governed under the terms of the Agreement.
Payment
1. Subject to the Order, the Client must pay any amount due to Comtec within 14 days of the date of issue of an invoice by Comtec to the Client.
2. Subject to the Client Credit Application and Order (and unless otherwise agreed in writing by the parties), Comtec will invoice the Client the Price in instalments as follows:
  1. 30% of the Price at the time of acceptance of the Order;
  2. 60% of the Price prior to despatch of the Equipment; and
  3. the balance of the Price on installation of the Equipment or within 30 days of despatch of the Equipment, whichever is the sooner.
3. Any amounts payable by the Client to Comtec are exclusive of any government charges, duties or taxes, including sales tax, goods and services tax (GST), use or excise taxes or similar taxes, unless specified otherwise by Comtec in writing. Any such charges, duties or taxes are payable by the Client.
4. The Client is deemed to have accepted any tax invoice if no dispute is raised within 7 days of the date of the tax invoice.
5. A dispute will not affect payment of non-disputed amounts on the same invoice. The Client must not withhold payment in whole or in part, or claim any right to set off, in respect of any money owed to Comtec for any reason.
6. To the extent permitted by law, Comtec will not be responsible for any damage or consequential loss (whether direct or indirect) suffered by the Client where a credit card is fraudulently used or is used in an unauthorised manner.
7. If the Client’s selected payment method triggers Comtec’s fraud prevention protocols, Comtec may contact the Client to confirm additional details, or rescind the Order. In this case, until the Order has passed Comtec’ s fraud prevention protocols the Order will not be fulfilled. If the Client does not provide the requested information within up to 7 days, the Order will be cancelled, and the payment will be refunded back to the method in which the Client paid (less merchant charges). These information requests are sent to help protect credit card holders from online fraud.
8. The Client must fully indemnify Comtec for any costs and expenses it incurs because of any overdue payment, including dishonour fees, collection fees and legal fees (on a full indemnity basis).
9. If the Client:
  1. fails to pay any amount owing to Comtec by the applicable due date for payment or otherwise fails to comply with any of the terms of this Agreement; or
  2. becomes subject to an Insolvency Event,
    any and all amounts owing by the Client to Comtec shall immediately become due and payable and Comtec may, at its option, cancel the Order or cancel or suspend despatch of the Equipment. Cancellation of an Order is without prejudice to Comtec’s accrued rights.
Interest
1. Without prejudice to any other right of Comtec, if the Client fails to pay Comtec an amount owed to Comtec when due, the Client must pay on demand interest on such amount at the rate of 6% per annum above the base rate charged from time to time by Comtec’s principal bankers for unsecured overdrafts of less than $100,000.
2. Interest accrues from day-to-day from the day the payment was due until and including the day that the relevant payment is made in full to Comtec by the Client.
Credit
1. The Client authorises Comtec to:
  1. obtain from a credit reporting agency a credit report containing personal information about the Client pursuant to section 18K(1)(b) of the Privacy Act 1988 (Cth);
  2. obtain a report from a credit reporting agency and other information in relation to the Client’s commercial credit activities;
  3. in accordance with section 18N(1)(b) of the Privacy Act 1988 (Cth), give to and obtain from any credit provider that may be named in a credit report issued by a credit reporting agency information about the Client’s credit arrangements, which may include information about credit worthiness, credit standing, credit history or credit capacity; and
  4. use any credit information for the purposes of this Agreement (section 18L(4) of the Privacy Act 1988 (Cth)) and in assisting the Client to avoid defaulting on payment obligations, notifying credit providers of a default, and assessing credit worthiness.
2. Any credit facilities for the Client may be suspended or withdrawn by Comtec, in its absolute discretion, at any time without notice.
3. The Client agrees to pay on demand all sums owing within 14 days in connection with any credit facility provided by Comtec in the event that such credit facility is suspended or withdrawn by Comtec.
4. The Client must notify Comtec of any proposed changes in the ownership, control or directorship of the Client, no later than 14 days prior to the proposed change. If there is a change, Comtec in its discretion deems to be material, Comtec may suspend or withdraw all credit facilities and/or require the Client to submit a new application for credit.
Default in Payment
1. If any moneys demanded by a notice from Comtec to the Client are not paid within the time stipulated in the tax invoice or notice, those moneys will then upon such default become a charge over the Site and any other real property the Client and/or Client Representative may own from time to time until payment is made in full to Comtec.
2. Comtec will not be entitled to caveat the Site or such other real property owned by the Client and/or Client Representative to secure payment of the moneys due under the charge granted but may apply to register a mortgage over any land owned by the Client and/or Client Representative to secure the charge and the Client and Client Representative (as the case may be) must consent and not object if the debt is due and outstanding even pending any dispute between the parties.
3. All costs incurred by Comtec in collecting any moneys demanded in the notice issued pursuant to clause 15 including stamp duty and all legal costs of any applications and recovery costs on a solicitor client basis must be paid by the Client and the Client Representative to Comtec.
Risk
1. Unless otherwise agreed in writing by Comtec, all risk in the Equipment shall pass to the Client on despatch.
2. On and from despatch, the Client is responsible for any deterioration, loss or damage to the Equipment and for insuring the Equipment at the Client’s own expense against all risks (including risks in transit).
3. The Equipment may come with Consumer Guarantees that cannot be excluded under Australian Consumer Law.
4. If any Equipment ordered by the Client arrives damaged or is not of acceptable quality on collection, the Client may have:
  1. rights under the Refund, Returns and Repair Policy;
  2. legal rights and remedies under Australian Consumer Law and other rights under other consumer laws applying in each Australian State and Territory; and/or
  3. to have the Equipment repaired or replaced or to receive a refund of the price paid by the Client for the Equipment.
5. Comtec may repair, replace or refund faulty or damaged Equipment in accordance with this clause 16. If the Order arrives damaged, please contact the Customer Support Team.
Title
1. Title and property in all Equipment supplied or delivered by Comtec to the Client and in any proceeds or Commingled Property derived from the Equipment (together, the Goods) will remain the absolute property of Comtec until all amounts owing by the Client to Comtec on any account whatsoever (including the Price for the Equipment) (Amounts Owing) have been paid (meaning receipt of cash or cleared funds by Comtec in full satisfaction of the Amounts Owing (Paid)).
2. Until the Amounts Owing have been Paid, the Client:
  1. holds the Goods as bailee or as trustee and agent (as the case may be) for Comtec;
  2. must ensure the Goods are insured and stored or identified so that they are readily distinguishable from other goods held by the Client or other persons; and
  3. must not alter, remove or tamper with any marks or numbers on the Goods supplied to the Client by Comtec.
3. Until the Amounts Owing have been Paid, the Client may, subject to the prior written consent of Comtec, move, sell and otherwise use the Goods in the ordinary course of its business, subject to the following:
  1. the Client must hold the proceeds it receives from any sale of the Goods as trustee and agent for Comtec and must pay those proceeds to Comtec immediately on demand; and
  2. if the Goods become part of a product or mass through manufacturing, processing, assembly or becoming commingled, Comtec’s security interest continues in that product or mass (Commingled Property) to the extent permitted by law.
4. Until title to the Goods pass to the Client under this Agreement, if an event of default described in clause 12.9 occurs (without limiting the Cllent’s rights under clause 12.9:
  1. upon demand by Comtec, the Client must return to Comtec the Goods within 3 days;
  2. at Comtec’s option, Comtec may enter the premises at which those Goods are stored and seize possession of the Goods; and
  3. Comtec may retain, sell or otherwise dispose of such Goods and apply the proceeds to repay any amounts owing to Comtec.
5. The Client must not assign or grant a security interest under the Personal Property Securities Act 2009 (Cth) (PPSA) or otherwise, in respect of any amounts owed to it in relation to the Goods without Comtec’s prior written consent.
6. Without limiting the meaning of Amounts Owing, if the Client makes a payment to Comtec at any time whether in connection with the supply of Equipment or otherwise, Comtec may, apply that payment as it sees fit.
7. If any payment the Client makes is voided or conceded to be void or is voidable at Comtec’s election, then that payment does not discharge the Client’s debt to Comtec and Comtec retains ownership to the Equipment.
Order Acceptance
1. The Client is responsible for inspecting the Equipment on delivery and must notify Comtec in writing within 24 hours of receipt of the Equipment if the Equipment delivered does not conform with the type and quantity of Equipment ordered.
2. The Client will be deemed to have accepted the Equipment delivered unless Comtec receives a written notice of rejection within the time period set out in clause 18.1.
3. Comtec shall replace any Equipment that does not conform with the type and quantity of Equipment ordered by the Client at Comtec’s cost.
Personal Property Securities Act
1. In this clause 19, the following words have the respective meanings given to them in the Personal Property Securities Act 2009 (Cth) (PPSA): account, ADI account, commingled, control, proceeds, purchase money security interest, register, registration, security interest and verification statement.
2. The Client irrevocably consents to Comtec effecting a registration on the PPS register (in any manner Comtec considers appropriate) in relation to any security interest contemplated by this Agreement and the Client agrees to do any act, matter or thing (including obtain consents, execute and produce documents, procure documents to be complete and executed and supply information) which is reasonably required by Comtec to ensure that the security interest is effective or to exercise any righty or power in connection with the security interest. The Client waives the right to receive notice of a verification statement in relation to any registration on the register.
3. If Chapter 4 of the PPSA would otherwise apply to the enforcement of a Security Interest arising in connection with this Agreement, the Client agrees the following provisions of the PPSA will not apply to the enforcement of this Agreement: section 95 (notice of removal of accession), to the extent that it requires Comtec to give a notice to the Client; 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 Comtec to give a notice to the Client; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
Confidentiality
1. Except as permitted by this Agreement, a party must not, and must ensure that their Associates do not:
  1. disclose to any person any Confidential Information of any other party;
  2. use or attempt to use the Confidential Information of any other party for its own benefit or the benefit of any other person.
2. A party must take all reasonable steps to maintain the confidentiality of, and prevent unauthorised use of, the Confidential Information of any other party.
3. If a party becomes aware of unauthorised use of Confidential Information of any other party it must notify the other party immediately and provide reasonable assistance to the other party to protect its confidential information.
4. Each party’s obligations under this clause continue until:
  1. the party who owns the Confidential Information ceases to treat the information as confidential; or
  2. the party is required to disclose the information by law, in which case it may only disclose it to the extent required by law and must notify the party who owns the confidential information as soon as possible when it becomes aware of the obligation to disclose.
Privacy and Personal Information
1. The privacy of personal information is important to Comtec.
2. By placing the Order or otherwise contacting Comtec, the Client agrees that: Comtec may store, process, use and disclose data collected from the Order for the purposes of processing and fulfilling the Order; and the Client data will be handled in accordance with the Privacy Policy.
3. The Privacy Policy available on the Website explains how personal information is collected and managed in accordance with the Australian Privacy Principles in the Privacy Act 1988 (Cth).
4. If Comtec merges, sells or otherwise change control of its business or the Website to a third-party, Comtec reserves the right, without giving notice or seeking consent, to transfer or assign the personal information, content and rights that Comtec has collected from the Client and any agreements it has made with the Client.
Termination
1. This Agreement may be terminated:
  1. if a party is in default of its obligations under this Agreement and does not remedy that default within 7 days of receipt of written notice from the other party requiring it to do so, the other party may terminate the Agreement and neither party shall have any further claims against the other except for those which have arisen prior to termination;
  2. by mutual agreement of the parties;
  3. by Comtec without notice where:
    1. the Client breaches clause 7, 10, 11, 12, 13, 14,15, 17, 20, 25, 27, 28, 30 or 32;
    2. the Client becomes an externally administered body (within the meaning of the Corporations Act 2001 (Cth)) or a controller (also within the meaning of that Act) is in possession or has control of any of the Client’s property;
    3. the Client ceases to carry on the Client’s business or becomes insolvent (within the meaning of the Corporations Act 2001 (Cth)); or
    4. the Client engages in dishonesty as determined by Comtec in its absolute discretion.
Accrued Rights & Consequences of Termination
1. Except to the extent specifically noted in this Agreement, termination under clause 22 does not affect any accrued rights or remedies of either party.
2. If this Agreement is terminated for any reason the Client must make payment immediately to Comtec for any and all amounts owing to Comtec and satisfy the Client’s obligations under clause 17.4, as applicable.
Obligations after Termination
1. The following clauses apply and will survive termination (for whatever reason) of this Agreement:
  1. clause 15 (Default in Payment);
  2. clause 16 (Risk);
  3. clause 17 (Title);
  4. clause 19 (Personal Property Securities Act);
  5. clause 20 (Confidentiality);
  6. clause 23 (Accrued Rights and Consequences of Termination);
  7. clause 25 (Restricted Activities);
  8. clause 27 (Limitation of Liability);
  9. clause 28 (Indemnity);
  10. clause 30 (Intellectual Property);
  11. clause 31 (Disclosure);
  12. clause 32 (Guarantee); and
  13. any other clauses that make provision for continued operation.
Restricted Activities
1. The Client will not, directly or indirectly:
  1. have close contact with, solicit, interfere in Comtec’s relationship with, employ, engage or endeavour to entice away from Comtec customers, clients, directors, employees, contractors, consultants, agents, representatives, associates, advisers and suppliers of Comtec; or
  2. establish, carry on, be engaged in, be concerned with, or otherwise engage in a business that competes with, or is of a similar nature to, Comtec; or
  3. counsel or induce any other person to perform any of the acts specified in clause 25.1.1 and 25.1.2.
2. The Client acknowledges that the restrictions and prohibitions contained in this clause 25 are reasonable having regard to the business and financial interests of Comtec and the nature of the provision of the supply of Equipment under this Agreement and are given without any coercion or pressure.
3. The Client acknowledges that if it breaches any of the obligations under this clause 25, in addition and without prejudice to any other remedy which Comtec may have, all amounts owing under this Agreement are an actionable debt owed by the Client to Comtec and that Comtec is entitled to seek and obtain interlocutory and permanent injunctive relief in any court of competent jurisdiction.
GST
1. All consideration provided under this Agreement is exclusive of GST, unless it is expressed to be GST-inclusive.
2. Where a party (Supplier) makes a taxable supply to another party (Recipient) under or in connection with this Agreement, the Recipient must pay to the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressed to include GST). The additional amount must be paid by the Recipient at the later of the following:
  1. the date when any consideration for the taxable supply is first paid or provided;
  2. the date when the Supplier issues a tax invoice to the Recipient.
3. If, under or in connection with this Agreement, the Supplier has an adjustment for a supply under the GST Act which varies the amount of GST payable by the Supplier, the Supplier will adjust the amount payable by the Recipient to take account of the varied GST amount. The Supplier must issue an adjustment note to the Recipient within 28 days of becoming aware of the adjustment.
4. If a party is entitled to be reimbursed or indemnified under this Agreement, the amount to be reimbursed or indemnified is reduced by the amount of GST for which there is an entitlement to claim an input tax credit on an acquisition associated with the reimbursement or indemnity. The reduction is to be made before any increase under clause 26.2.2 above. An entity is assumed to be entitled to a full input tax credit on an acquisition associated with the reimbursement or indemnity unless it demonstrates otherwise before the date the reimbursement or indemnity is made.
5. Any reference in this Agreement to sales, revenue, income, value or similar amount (Revenue) is a reference to that Revenue exclusive of GST (unless that Revenue is expressed to be GST-inclusive).
6. Any reference in this Agreement to cost, expense, liability or similar amount (Expense) is a reference to that Expense exclusive of GST (unless that Expense is expressed to be GST-inclusive).
7. This clause will not merge on completion and will survive the termination of this Agreement by any party.
8. Terms used in this clause that are not otherwise defined in this Agreement have the meanings given to them in the GST Act.
Liability
1. To the maximum extent permitted by law:
  1. any guarantee, condition or warranty (including, without limitation, any implied guarantee, condition or warranty of merchantability, satisfactory quality or fitness for a particular purpose) which would otherwise apply to, or be implied in, these Trading Terms is hereby excluded; and
  2. Comtec excludes all liability in respect of the Equipment.
2. To the extent that:
  1. this clause is void as a result of section 64 to the Australian Consumer Law (or equivalent state or territory legislation); or
  2. any law provides for, or implies in this agreement, any guarantee, condition or warranty; or
  3. any law voids or prohibits a provision in a contract excluding or modifying the application of, or exercise of, or liability under, a guarantee, condition or warranty; or
  4. Comtec is not otherwise permitted by law to exclude liability under law, then to the maximum extent permitted by law, Comtec’s liability for any breach of such guarantee, condition or warranty, or otherwise, shall be limited, at Comtec’s option, to one or more of the following:
  5. the replacement of Equipment delivered or the supply of equivalent Equipment at no additional charge;
  6. the repair by Comtec of such Equipment at no additional charge;
  7. a refund of the cost of replacing such Equipment or acquiring equivalent Equipment, or the cost of having such Equipment repaired; and
  8. the re-supply of any services provided by Comtec or a refund of the cost of having such services supplied again.
3. Other than as specifically stated in this Agreement and to the maximum extent permitted by law, Comtec is not liable for and the Client hereby fully releases and indemnifies Comtec from any claim, action, demand, and all losses (including without limitation indirect and consequential losses), costs, liabilities and expenses (including legal costs on a full indemnity basis) (Claims), for fines, penalties, taxes (except GST) and arising directly or indirectly out of or in connection with the Client’s use or application of the Equipment, including without limitation the installation, use, operation and maintenance of the Equipment other than in accordance with Comtec’s instructions or recommendations (except to the extent that Comtec’s negligence, fraud or willful misconduct caused or contributed to such Claims).
Indemnity
1. The Client must indemnify and keep indemnified Comtec from and against any losses, costs, damages and expenses (including for example, a deductible under an insurance policy) arising in connection with:
  1. the loss of or any damage to, any property of any person; and
  2. the death of, or injury to any person caused or contributed to by Comtec, its subcontractors, employees or agents.
2. Without limiting the generality of clause 28.1, Comtec must indemnify the Client and keep indemnified the Client, from and against any claims, actions, proceedings, losses or costs, damages and expenses arising in connection with, or brought by, any person employed or engaged by Comtec, any subcontractor and any officer, person employed or engaged by a subcontractor in connection with this Agreement applying until the end of this Agreement.
Disputes
1. The parties will use reasonable commercial endeavours to resolve disputes between them quickly and, where possible, without resort to legal proceedings.
2. If despite the use of reasonable endeavours, the parties cannot reach agreement on any aspect of their respective rights and obligations under this Agreement, either party may notify the other of the existence of a dispute, giving details of the dispute including references to and copies of any relevant documentation and correspondence.
3. Within 10 Business Days of receipt of a notice of dispute, each party must prepare a written statement concerning the disagreement (Dispute Summary) and provide a copy of their Dispute Summary to the other.
4. If the parties are unable to reach agreement regarding the dispute within 5 Business Days of the exchange of the Dispute Summaries, the parties must provide both Dispute Summaries together with a report on their efforts to resolve the dispute to an independent mediator selected by the President of the Law Society of New South Wales who must use their reasonable attempts to resolve the dispute.
5. The parties maybe assisted in the dispute resolution process by external parties (including of a financial, technical or legal nature).
6. Nothing in this clause prevents a party from applying to a court for urgent interlocutory relief or an interim remedy.
7. To the greatest extent possible, having regard to the nature of the dispute, the parties must continue to perform their respective obligations under this Agreement, despite the existence of the dispute.
Intellectual Property
1. The Client acknowledges and agrees that all intellectual property rights in the Equipment are the property of Comtec
2. The Client acknowledges and agrees that:
  1. all right, title and interest (including any Intellectual Property Rights) in and to any Comtec Materials which are created or brought into existence in connection with the obligations of Comtec under this Agreement, vest in Comtec on creation.
  2. All right, title and interest (including any Intellectual Property Rights) in and to any adaptation of any Comtec Materials, and any reproduction of any Comtec Materials whether made by the Client or Comtec in connection with the obligations under this Agreement, vest in Comtec on creation.
3. The Client must not and must not cause, permit or assist any other person directly or indirectly to:
  1. copy any intellectual property rights in the Equipment or record or replicate it by any other means;
  2. make copies of or replicate the Equipment;
  3. translate, reverse engineer, decompile or disassemble the Equipment; or
  4. copy, publish, disclose or distribute any documentation associated with the Equipment (including, without limitation, Comtec Materials).
Disclosure
1. Comtec notifies the Client that Comtec and/or Comtec’s Related Body Corporates or Associates may receive a rebate, commission or benefit (financial or otherwise) from a third party in connection with this Agreement.
2. The Client acknowledges and accepts:
  1. a rebate, commission or benefit (financial or otherwise) is or may be payable to Comtec, Comtec’s Related Body Corporates or Associates from a third party in respect of a sale, service, dealing, introduction or referral and the nature of any rebate, commission or benefit (financial or otherwise); and
  2. the Client may refuse any introduction or referral, and the Client hereby gives informed consent to any rebate, commission or benefit (financial or otherwise) received or which may be received by Comtec, Comtec’s Related Body Corporates or Associates from a third party; and
  3. the Client is hereby advised of any payments, rebate, commission or benefit (financial or otherwise) to Comtec, Comtec’s Related Body Corporates or Associates from a third party.
3. For the avoidance of doubt, the Client hereby consents to, and waives, and releases any claims whatsoever for any conflict of interest in the connection with Comtec’s obligations under this Agreement.
Guarantee
1. If the Client is a company, association or other non-natural person, the parties agree that the directors, trustees, board members or other persons who are authorised to make the order hereby guarantee the obligations of the Client as Guarantors under this Agreement.
2. In consideration Comtec entering into this Agreement and providing the Equipment and any services, the Guarantors jointly and severally guarantee and indemnify Comtec as follows:
  1. the Guarantors must pay to Comtec on demand all amounts payable under this Agreement which are not paid by the Client within the time prescribed in this Agreement for payment whether or not demand for those amounts have been made by Comtec on the Client;
  2. the guarantee in clause 32.2.1 extends to payment of all monies and the observance and performance of all the Client’s obligations as specified in this Agreement;
  3. the guarantee is for the period from that the Client instructs Comtec of an Order and any period in which Comtec is involved in the Order as a result of Client instructions;
  4. the guarantee is for the benefit of Comtec;
  5. the guarantee extends to claims by Comtec for damages for breach of any terms of this Agreement and to Comtec’s reasonable legal and other expenses of seeking to enforce those obligations against the Client;
  6. Comtec will be entitled to require the Guarantors under this guarantee to pay to Comtec any and all outstanding monies and other amounts and to compensate Comtec for any loss or damage under this Agreement without Comtec being required to institute proceedings against the Client in respect of such claims or breaches; and
  7. Comtec’s rights against the Guarantor are not affected by any of the following:
    1. death, bankruptcy or winding up of the Client or the Guarantors or any of them; and
    2. the Client’s liability under the Agreement or the Agreement being or becoming invalid, illegal or unencodable through any act omission or legislation.
Notices and Consents
1. Neither party has authority to bind the other without that other party’s express written consent.
2. All notices and consents must be in writing signed by the sender, marked to the attention of the recipient’s contact person and sent to the addresses or fax numbers for notices specified in the Order or as later notified.
3. Notices may be sent by email. Communications sent by email need not be marked for attention. However, the email must state the first and last name of the sender. Communications sent by email are taken to be signed by the named sender.
4. Notices are deemed to be served:
  1. if sent by fax or email, upon receipt by the sender of a successful transmission report;
  2. if sent domestically by post, on the third business day after posting; or
  3. if sent internationally by post, on the sixth business day after posting.
Force Majure
1. If Comtec is unable at any time to perform any of its obligations whether wholly or partly by reason of any cause beyond its control (including without limitation, acts of God, inclement weather, strikes, lockouts, fires, riots, government order, infectious disease outbreaks (including but not limited to COVID-19), default of any subcontractor, accident to plant or machinery, shortage of materials or labour, civil commotion or unrest, interference by civil or military authorities or act of war) Comtec may give written notice to that effect to the Client, giving full particulars of such force majeure in which case the obligations of Comtec under this Agreement shall, to the extent that they are affected by the force majeure, be suspended during the term of the force majeure. Comtec shall not be liable for any loss or damage suffered by the Client as a result of any delays caused by such force majeure events.
General
1. (Independent Legal Advice) Each party and any Guarantor acknowledge that prior to entering into this Agreement they have had the opportunity to obtain independent legal advice in relation to this Agreement.
2. (Special Conditions) If there are Special Conditions, those Special Conditions supersede and prevail over terms and conditions in these General Terms and Conditions and each Schedule, to the extent of any inconsistency
3. (Entire Agreement) This Agreement constitutes the entire agreement between the parties about its subject matter and supersedes any previous understanding, agreement, representation or warranty relating to this subject matter and supersede all prior negotiations, representations, proposals, undertakings and agreements, whether written or oral, relating to the subject matter of the Order.
4. (Severability) If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause or part of that clause is regarded as having been deleted from this Agreement and this Agreement otherwise remains in full force and effect.
5. (Costs) Each party will bear its own legal and other costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement.
6. (Assignment) Comtec may, at any time, assign any of the rights under, or novate this Agreement, in its absolute discretion. If Comtec novates this Agreement, Comtec will have no liability in respect of this Agreement, from the date of novation. The Client must not assign any of its rights under this Agreement without the prior written consent of Comtec which will not be unreasonably withheld.
7. (Variation) Subject to the terms of this Agreement, a variation of this Agreement will only be valid if evidenced in writing and signed by both the Client and Comtec.
8. (Waiver) A party’s delay or failure to enforce a provision of this Agreement is not a waiver of that right. A waiver must be in writing and served in accordance with clause 33.
9. (Further Acts) Each party will do all things necessary to give full effect to this Agreement and the transactions contemplated by it.
10. (Time is of the Essence) Time is of the essence as regards to any date or period referred to in this Agreement.
11. (Counterparts) This Agreement may be executed in one or more counterparts, which taken together constitute one agreement. If so, the signed copies are treated as making up one document and the date on which the last counterpart was executed will be the date of the Agreement. The signature of a party via a scanned or digitised image of a handwritten signature (e.g. scan in PDF format) or an electronic signature (e.g. via DocuSign or HelloSign), will have the same force and effect as an original handwritten signature for the purposes of validity, enforceability, and admissibility. Delivery of the fully executed copy via e-mail or via an electronic signature system shall have the same force and effect as delivery of an original hard copy.
12. (Governing Law) This Agreement is governed and interpreted by the laws of New South Wales. The courts of New South Wales have jurisdiction to determine any proceedings in relation to this Agreement.
Definitions & Interpretation
1. Headings are for ease of reference only and do not affect interpretation.
2. In this Agreement, unless the context otherwise requires:
  1. the singular includes the plural and vice versa, and a gender includes other genders;
  2. another grammatical form of a defined word or expression has a corresponding meaning;
  3. a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference to this Agreement includes any schedule or annexure;
  4. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
  5. a reference to A$, $A, dollar or $ is to Australian currency, a reference to Euro, EUR or € is a reference to the European Union (EU) currency; a reference to USD, $US or USD$ is a reference to United States currency; a reference to CHF is to Swiss Franc currency;
  6. a reference to time is to Sydney, Australia time;
  7. a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
  8. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
  9. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  10. a word or expression defined in the Corporations Act 2001 (Cth) has the meaning given to it in the Corporations Act 2001 (Cth);
  11. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
  12. any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
  13. any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
  14. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
  15. if a day on or by which an obligation must be performed, or an event must occur is not a Business Day, the obligation must be performed, or the event must occur on or by the next Business Day.
3. In this Agreement:Agreement means these Terms and Conditions of Sale of Equipment together with any schedules and each of the:Refund, Return, Repair Policy;
  Shipping Policy;
  Consumer Guarantees;
  Privacy Policy; and
  Client Credit Application.
  
  Associates mean employees, agents, officers, directors, partners, consultants, joint venturers, or subcontractors of that party.
  
  Business Day means any day excluding public holidays.
  
  Business Hours means the hours between 8.30am and 5.00pm on a Business Day.
  
  Client means the person making the Order and includes any of the Client’s Related Bodies Corporates and Associates and Client Representative.
  
  Client Representative means the person(s) identified as the Client Representative in the Order and as otherwise notified in writing by the Client to Comtec from time to time.
  
  Confidential Information means all confidential information, non-public or proprietary information regardless of how the information is stored or delivered, exchanged between the parties before, on or after the date of this Agreement relating to the business, technology, customers or other affairs of the disclosing party excluding the Excluded Information.
  
  Comtec means Comtec Australia Pty Ltd (ACN 008 125 657) of Suite 38, 20-28 Maddox Street
  Alexandria, NSW 2015, Australia.
  
  Comtec Materials means any and all operating instructions, manuals, documentation or other material provided by Comtec to the Client in connection with the performance of its obligations under this Agreement, whether such material is stored in hardcopy of electronic form.
  
  Excluded Information means Confidential Information which:
  - is in the public domain other than by breach of this Agreement;
  - the recipient can prove was already known to it at the time of disclosure by the disclosing party, unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality;
  - the recipient acquires from a source other than the disclosing party where such source is entitled to disclose it.
  Equipment means the equipment set out it in the Order.
  
  Financial Year means the 12 months from 1 July to 30 June.
  
  GST means the goods and services tax as imposed by the GST Act.
  
  GST Act means the A New Tax System (Goods and Services Tax) Act 1999 and all associated legislation.
  
  Intellectual Property Rights means:
  - inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
  - copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
  - Confidential Information and trade secrets;
  - trade and service marks (whether registered or unregistered) business names, trade names, logos and get-up; and
  - any application or right to apply for registration of any of the rights referred to above whether arising before or after the date of this Agreement.
  Insolvency Event means the Client suffers or, in the reasonable opinion of Comtec, is in jeopardy of becoming subject to any form of insolvency administration or bankruptcy, or ceases or threatens to cease to carry on business.
  
  Order means a verbal or written request for the supply of Equipment placed by the Client and accepted by Comtec, or a quotation given by Comtec and accepted by the Client at the price advertised and/or quoted in accordance with the terms of the Agreement by: the Client confirming the order details (verbally or in writing) or executing an order form or quotation for the Equipment with Comtec; the Client making payment in part or in full (plus any applicable shipping and delivery charges) or as otherwise noted on the order or quotation; and the acceptance of that order by Comtec.
  
  Price means the total monetary amount payable by the Client to Comtec for the supply of Equipment, as specified in the Order (in the relevant currency), including any modifications to the Price as provided under the terms of the Agreement. This Price is exclusive of GST, delivery, handling charges, and any other additional charges that may be applicable under the Agreement.
  
  PPSA means the Personal Property Securities Act 2009 (Cth).
  
  Related Body Corporate has the meaning given under the Corporations Act 2001 (Cth).
  
  Site means the address and location of the proposed or actual installation of the Equipment by the Client the subject of the Order under the Agreement.
  
  Special Conditions means terms set out as Special Conditions in the Order.