TERMS & CONDITIONS OF SALE
To the extent permitted by law, the following terms and conditions apply to all Goods and Services supplied by ALIVA PTY LTD (“ALIVA”). Where an individual contract has been entered into, the following terms and conditions apply in addition to and are incorporated into such individual contract, except in the event of inconsistency:
DEFINITIONS OF TERMS:
“Approved Credit Account Customer” – means a Customer with whom ALIVA has entered into a credit account.
“Business Day” means Monday to Friday inclusive, except gazetted public holidays applicable to the location.
“Business Hours” means the hours between 8:30am and 5:00pm of a Business Day.
“Confidential Information” means any trade secrets embodied in any information relating to, but not limited to, the commercial activities, product pricing, technologies, business processes, customer relationships, strategic information and any other information related to the conduct of each party’s business.
“Customer” – means the purchaser of Goods or Services and includes a person, business or company.
“Customer Document” means a quotation, proposal, bill of materials, scope of work, or other specifications applicable to the sale or supply of Goods and Services by ALIVA.
“EULA” means the licence agreement governing the use of Software between the Customer and the owner of that Software.
“Goods” means Hardware or Software procured or supplied pursuant to these terms and conditions.
“Hardware” means any physical product manufactured by a third party, including any associated third party maintenance service contracts.
“Incidental Costs” means freight, tax, installation, support or maintenance costs, preparation of the site, audit of customer’s physical environment, overtime rates, and miscellaneous expenses such as travel and accommodation.
“Price” is the amount set out in the Customer Document for the Goods or Services required by the Customer and does not include Incidental Costs.
“Purchase Order” means a valid, written authority in compliance with the Customer’s internal procurement process, which references applicable Customer Document and approves the procurement from ALIVA of the required Goods or Services.
“Services” includes professional services, support services, hosting services and managed services.
“Software” means any licensed, packaged software that is manufactured, licensed or owned by a third party, the use of which is subject to their EULA.
GOODS: ORDERS AND DELIVERIES
• Orders for Goods on credit will only be accepted from Approved Credit Account Customers.
• Goods or Services man only be procured upon receipt of a Purchase Order from the Customer.
• Once a purchase order has been received by ALIVA, the order is considered to be a firm and binding contract of sale.
• If the customer is not an Approved Credit Account Customer, payment is required prior to shipment of the Goods.
• Prices quoted by ALIVA are valid for a period of 14 days from the date of the Customer Document.
• List prices and specifications of Goods are subject to change without notice.
• ALIVA will arrange for Goods to be shipped by an authorised Courier to the Customer’s nominated delivery address.
• If there is no one available to accept and sign for the delivery of the Goods at the Customer’s nominated delivery address, within Business Hours on a Business Day the Customer is responsible for any additional costs incurred on account of subsequent delivery attempts having to be made.
• ALIVA takes no responsibility for Goods shipped by a courier nominated by the Customer.
• Estimated delivery dates are based on information available to ALIVA from suppliers and are subject to change at any time, without prior notice. ALIVA is not responsible for delays in delivery caused for reasons beyond our control. ALIVA is not liable for delay in delivery of the Goods, howsoever caused.
PERFORMANCE OF SERVICES
• Unless otherwise agreed, Services will be performed during Business Hours of Business Days, in accordance with the applicable Customer Document. ALIVA will perform the Services utilising such resources, employees and subcontractors as we deem appropriate.
• Unless the Customer is an Approved Credit Account Customer, payment must be made by the Customer prior to shipment of the Goods or prior to performance of the Services.
• Payment by Approved Credit Account Customers is to be made in accordance with the agreed terms of credit.
• Payment by Customers in Australia can be made via cheque (payable to “Aliva Pty Ltd, credit card (Visa, MasterCard), EFTPOS or direct deposit.
• Credit card payment facilities are not available for Customers outside of Australia.
• Payment by direct deposit may be made into the following account:
Aliva Pty Ltd
National Australia Bank BSB 084 424
Account 54583 7724
INSPECTION, ACCEPTANCE, OWNERSHIP
• Risk of loss or damage of Goods passes to the Customer upon delivery.
• Notwithstanding passing of risk, ALIVA retains ownership of Goods until payment has been made in full.
• Until title in the Goods passes to the Customer, it is the Customer’s responsibility to store the Goods appropriately.
• Upon non-payment within the trading terms ALIVA is entitled to retrieve the Goods. When called upon to do so, the Customer must deliver up the goods to ALIVA. The Customer indemnifies ALIVA against any claim, action or damages arising out of any such action, and against the cost of the same.
• It is the Customer’s responsibility to inspect all Goods upon delivery.
• Unless the Customer notifies ALIVA to the contrary on the day of delivery, the Goods will be deemed to have been accepted by the Customer.
• ALIVA warrants to use commercially reasonable efforts to perform the Services (including the provision of associated materials) in accordance with a Customer Document and any milestones set out therein, and that all Services will be provided with due care and skill.
• Nothing in this clause affects a Customer’s rights under the Australian Consumer Law.
• Unless specified otherwise and in addition to any rights the Customer may have under statute, Goods sold by ALIVA will carry the warranty provided by the manufacturer of the Goods. ALIVA cannot provide any additional warranty in relation to the Goods.
GOODS, RETURNS AND REFUNDS
• Nothing in this clause affects a Customer’s rights under the Australian Consumer Law.
• Unless specified otherwise and in addition to any rights the Customer may have under statute. When a Customer has ordered Goods incorrectly, or changes its mind, the Customer may apply to return them to ALIVA for a credit, provided that:
• The Goods are returned within 7 days of the invoice date;
• The goods are complete and in their original packaging;
• The packaging is capable of being re-sealed;
• A re-stocking fee may apply;
• Depending on the reason for return of the Goods, an ALIVA return handling fee of $25 + GST and reimbursement of freight costs associated with the return may be applied;
• Goods returned more than 30 days from the invoice date will not be accepted for a credit;
• Special, non-standard Goods or Goods supplied as custom made for a Customer order will not be accepted for credit;
• Freight charged on the original invoice for the Goods will not be credited on returned Goods;
• The Customer is responsible for the cost of returning the Goods to ALIVA.
• Goods that are received in damaged condition (in transit) or are defective within 30 days from the date of invoice may be considered DOA (Dead on Arrival) and may be returned to ALIVA at ALIVA’s cost for replacement or refund.
• The process for returning Goods is as follows:
• The Customer must advise ALIVA in writing of their intention to return the Goods, detailing the nature of the fault.
• ALIVA will allocate a return reference number to the Goods.
• The return reference number is an authorization to return the Goods for evaluation, it is not an agreement by ALIVA to credit or replace the Goods;
• ALIVA will advise the Customer as to the outcome of the return request;
• If the return request is approved, ALIVA will provide a return authorization label to the Customer which must be affixed to the Goods and returned as per ALIVA’s instructions.
• A return authorization is valid for 14-28 days (depending on the supplier).
• A service fee may apply if there is no fault found with Goods returned for repair.
• To the extent permitted by law, ALIVA limits its liability for any loss or damage caused by or arising out of the use of the Goods, or arising out of failure, malfunction, or deterioration of such Goods, to the cost of repair or replacement of the Goods.
• The process for returning Goods for repair under manufacturer’s warranty varies depending on the manufacturer. ALIVA will comply with its statutory obligations in this regard.
LIMITATION OF LIABILITY
• Except in respect of a breach of Confidentiality, in no event shall either party be liable for any indirect, special, or consequential damages whether such damages are alleged as a result of tortious conduct (including negligence) or breach of contract or otherwise. ALIVA’s liability in aggregate for all claims made against ALIVA in contract, tort or any other common law or statutory cause of action in connection with this Contract is limited to:
a. In respect of Goods, the component of the Price paid for such Goods under this Contract;
b. In respect of Services, the component of the Price paid for such Services under this Contract;
• Where a claim relates to both Goods and Services, the limits on ALIVA’s liability shall operate separately and independently of each other in respect of such Goods and Services. A party’s liability for a claim of another party will be reduced proportionately to the extent that any act of omission of the first mentioned party or any of its officers, agents, employees or contractors causes or contributed to those liabilities, losses, damages, cost or expenses.
TERM AND TERMINATION
• This Contract will continue in force for the term set out in a Customer Document or until ALIVA has fulfilled its obligations under this Contract. Either party may otherwise terminate this Contract upon 30 days prior written notice, whether the other party is in material default.
NON-POACHING OF ALIVA RESOURCES
• A Customer must not solicit or endeavour to directly procure the Services of any resource, employee or subcontractor of ALIVA without payment of a placement fee as agreed between the parties.
• A Customer must not solicit or endeavour to directly procure the Services of any employee whom has terminated their employment by ALIVA within a period of six months of their termination, without payment of a placement fee as agreed between the parties.
• ALIVA may at any time transfer, or assign any or all of its rights, obligations, benefit or interest under this Contract.
• The provisions of this Contract are enforceable independently of each of the others and if a provision is or becomes illegal, invalid, void or deemed unenforceable, it shall not affect the legality, validity or enforceability of any other provisions of this Contract.
• Waiver failure or delay by either party to enforce any provision of this Contract shall not be deemed waiver of future enforcement of that or any other provision.
• This Contract shall be governed by the laws of Queensland.