The sale and supply of Goods and/or Services by My Invisible CIO is upon these terms and conditions. Unless specified otherwise in writing, these terms and conditions are the entire terms and conditions applying to a sale and/or supply and prevail over any inconsistent terms and conditions.
In these terms and conditions:
- "Contract" means any contract, agreement, understanding or arrangement under which Goods and/or Services are supplied by My Invisible CIO;
- "My Invisible CIO" means My Invisible CIO ABN 93 214 780 334;
- “ABN 93 214 780 334” trading as My Invisible CIO and its sub-contractors;
- "Delivery Date" means the date of delivery specified in clause 7;
- "Goods" means the goods which are the subject matter of a Contract;
- "Services" means the services which are the subject matter of a Contract;
- "Purchaser" means the legal entity to or for whom Goods and/or Services are supplied by My Invisible CIO and includes that entity's successors and permitted assigns;
- "Purchase Price" means the price of goods as specified in clause 3.
Unless specified otherwise in writing or withdrawn or amended in writing, all quotations are valid for (30) thirty days from the date of the quotation. A quotation is not a binding offer to supply Goods and/or Services.
All orders or offers are subject to acceptance by My Invisible CIO in its absolute discretion.
A quotation will be accepted and an order and offer to be supplied with Goods and/or Services placed when the receiving party signs a corresponding order, contract, scope of works, letter of intent or other document indicating acceptance.
Clients deposit, in the absence of a signature, will also indicate acceptance of this project and the terms and conditions as stated herein.
The Purchase Price will be the price specified in the relevant quotation, invoice, offer or acceptance (whichever is the last issued by My Invisible CIO) or if no price is specified the current price of My Invisible CIO plus (unless otherwise specified in writing):
- a) all handling, delivery, installation, storage and maintenance costs, insurance, GST, stamp duty and other government tax or imposts incurred by My Invisible CIO;
- b) any increase in costs to My Invisible CIO resulting from changes in exchange rates; and
- c) the cost of any special packaging required by the Purchaser or deemed necessary by My Invisible CIO. Unless specified in writing otherwise, the Purchase Price includes the standard packaging of My Invisible CIO.
Unless specified in writing or otherwise, the Purchaser must pay the Purchase Price by cheque, electronic funds transfer :
- a) if no credit is granted by My Invisible CIO, with an order;
- b) within (7) seven days from date of invoice or milestone for supplies specified as "Projects"
- c) within (14) fourteen days from date of invoice for supplies specified as "Hardware" or "Security"
- d) within (30) thirty day from date of invoice for supplies specified as "Maintenance" or "Support"
- e) If the Purchaser fails to pay the Purchase Price when due, without prejudice to My Invisible CIO's other rights and remedies, My Invisible CIO may:
- i.require immediate payment of any other amounts payable under the Contract;
- ii.change the terms of payment including requiring cash payment upon delivery;
- iii.treat the Contract as repudiated and My Invisible CIO entitled to terminate the Contract;
- iv.refuse to make any further deliveries or supplies,
- v.require the payment of interest on all outstanding amounts from the due date until the date of payment at a rate equal to My Invisible CIO's current overdraft rate as varied from time to time; and/or
- vi.require the payment of any loss, claim or cost of My Invisible CIO incurred in recovering such amount including legal and administrative costs.
GOODS AND SERVICES TAX
This provision shall apply subsequent to the commencement of any legislation which imposes any tax on the supply of any goods, services, real or personal property or other things or similar tax ("GST"), excluding stamp duty.
My Invisible CIO may increase the amount ("original amount") of any payment due at any time by the Purchaser to My Invisible CIO which has not been specified to include GST by an additional amount, as notified by My Invisible CIO to the Purchaser, sufficient that the total amount payable by the Purchaser, after discounting for the amount of any GST liability payable by My Invisible CIO on that total, is equal to that original amount.
TITLE & RISK
Title to Goods and products resulting from Services ("Goods" for the purposes of this clause) (including licences to software) remains with My Invisible CIO until full payment of the Purchase Price is received by My Invisible CIO.
Until title to and property in the Goods has passed to the Purchaser:
- a) the Purchaser shall keep the Goods free from all third party interests including charges, liens and encumbrances;
- b) store the Goods separately from its own goods and goods of other persons and in a manner which makes them readily identifiable;
- c) the Purchaser shall hold the Goods on trust and as bailee for My Invisible CIO;
- d) the Purchaser agrees not to sell, modify or alter the Goods or use them to produce other goods;
- e) My Invisible CIO shall be entitled to recover or require immediate redelivery of the Goods and be permitted to enter any premises on which the Goods are stored;
- f) My Invisible CIO may maintain an action for the price of the Goods notwithstanding that property in the Goods may not have passed to the Purchaser; and
- g) the Purchaser agrees to indemnify My Invisible CIO against all losses including damage to the Goods and death or injury to any person arising out of the Purchaser's possession of the Goods.
All risk in relation to the Goods, including risk of damage or loss, passes to the Purchaser on delivery of the Goods.
The Purchaser shall indemnify My Invisible CIO against and pay to My Invisible CIO immediately upon demand all and any loss, damage, cost, charge, expense or other liability (including but not limited to consequential loss, loss of profits and legal costs) incurred or sustained by My Invisible CIO in exercising any of its rights under this clause on a full indemnity basis.
Nothing in this clause shall confer a right upon the Purchaser to return the Goods or to refuse or delay payment.
DELIVERY & FREIGHT
The Delivery Date is the earlier of:
- h) physical delivery of the Goods to the Purchaser, the place of business of the Purchaser or a carrier, whether the carrier is engaged by My Invisible CIO or the Purchaser;
- i) upon My Invisible CIO's notification to the Purchaser that the Goods are available for physical delivery; or
- j) for Services, the date the Services are supplied.
Delivery will be deemed complete when the Goods are delivered to the Purchaser, a carrier or have been available for (7) seven days after notification that the Goods are available for physical delivery.
If the Goods remain in the possession of My Invisible CIO after the Delivery Date, the Purchaser must pay any storage or handling charges incurred by My Invisible CIO.
My Invisible CIO's invoice or delivery dockets showing quantities, characteristics, classifications, date and place of delivery of Goods shall be conclusive evidence of the matters stated in those documents.
The Purchaser is responsible for all freight and insurance costs for the Goods. My Invisible CIO will arrange freight and, unless otherwise agreed, My Invisible CIO reserves the right to charge freight equal to cost incurred by My Invisible CIO for delivery to the Purchaser.
The Goods are at the Purchaser's risk after the Delivery Date, whether of not the Purchaser has taken possession of the Goods. The Purchaser is responsible for any loss or damage to the Goods after delivery.
Unless otherwise specified in writing, My Invisible CIO will pass on the benefit of the warranties and representations expressly provided in writing to My Invisible CIO by manufacturers of Goods. The warranty shall be ineffective and shall not apply to Goods that have been subjected to misuse or abuse, neglect, accident, damage or improper installation or maintenance. My Invisible CIO shall perform, and warrants all Services will conform to the applicable scope of works and/or services description.
LIMITATION OF LIABILITY
To the fullest extent allowed under law and subject to the Trade Practices Act, My Invisible CIO excludes all warranties or conditions relating to the Goods and/or Services or its obligations under a Contract, to the extent that warranties or conditions implied by the Trade Practices Act or similar legislation cannot be excluded, the liability of My Invisible CIO for breach of any such warranty or condition is limited to the replacement or repair of the Goods or, in the case of Services, to the supply of those services again.
In no event shall My Invisible CIO be liable for any indirect, consequential or special damages in connection with or arising out of Goods and/or Services and in no event shall My Invisible CIO's liability on any claims for damages arising out of or connected with the Contract or the manufacturer, sale, delivery or use of the Goods and/or Services exceed the Purchase Price.
My Invisible CIO will not be liable for any damage, defect or failure in goods caused by acts of nature, transport, packaging, impact with objects or liquids, attachments, accessories, unauthorised repairs, maintenance or service or power supplies.
My Invisible CIO will not be liable for any loss or damage, including, without limitation, loss or damage caused by the negligence of My Invisible CIO, any incidental and consequential loss or damage, in any manner wholly or partly arising from, or in connection with the Contract, including any antecedent negotiations or representations except as is otherwise provided by these terms and subject to all rights and remedies which we provided pursuant to legislation that cannot be excluded.
Any liability of My Invisible CIO or its sub-contractors with respect to or arising from or in connection with the Contract or any antecedent negotiations or representations shall be limited to the fullest extent permitted by the law, regardless of the nature of any claim or action, whether in contract, tort including negligence, or otherwise.
The Purchaser indemnifies and holds My Invisible CIO harmless against all losses and liabilities and expenses whatsoever incurred by My Invisible CIO resulting from any claims or demands by any third party brought at any time out of or otherwise in connection with the supply or use of the Goods and/or Services, subject to all rights and remedies which are provided pursuant to the legislation that cannot be excluded.
Goods may be subject to United States, Australian and other Government export control laws and regulations. Purchaser warrants that it will comply with those regulations whenever it exports or re-exports products or technical data obtained from My Invisible CIO or any product produced directly or indirectly from products or technical data. Purchaser will indemnify and hold harmless My Invisible CIO for any violation or alleged violation by Purchaser of such rules, policies or procedures.
Purchaser shall hold confidential and shall not use or permit others to use any confidential information identified as such in writing or orally by My Invisible CIO or information which Purchaser knows or has reason to know is confidential, proprietary or trade secret information of My Invisible CIO.
The Purchaser must provide written notice of any claim of defects or other with (7) seven days from the Delivery Date. No Goods may be returned to My Invisible CIO without the written approval of My Invisible CIO upon such terms as My Invisible CIO may require, unless otherwise required by law.
My Invisible CIO shall have no liability, risk or responsibility whatsoever in regard to Goods and/or Services the subject of a claim until My Invisible CIO expressly accepts the claim by refunding the Purchase Price, replacing the Goods, repairing the Goods, re-supplying the Services or otherwise accepts the claim by written notice.
Any Goods returned to My Invisible CIO shall be complete as sold, in their original packaging, and accompanied by the original invoice for the Goods.
The Purchaser shall be liable for packaging, transport and insurance costs for the goods the subject of a claim until the goods are returned to My Invisible CIO and My Invisible CIO accepts the claim.
My Invisible CIO holds a complete discretion to accept or reject any claim and determine any liability of My Invisible CIO.
My Invisible CIO reserves the right to charge a handling fee of 20% for all returns.
My Invisible CIO shall not be liable for any failure to perform, loss or damage resulting directly or indirectly from or contributed to by acts of God; act of the Purchaser; acts of civil or military authority; priorities; fires; strikes or other labour disputes; accidents; floods; epidemics; war; riot; delays in transportation; lack or inability to obtain raw materials, components, labour, fuel or supplies; or other circumstances beyond My Invisible CIO's reasonable control, whether similar or dissimilar to the foregoing.
The Purchaser must not assign or purport to assign any of its rights under these terms and conditions without the prior written consent of My Invisible CIO.
A Contract may not be amended or terminated except in writing signed by both parties. In the event of a termination of a Contract, any reasonable costs that have been borne by My Invisible CIO prior to this time in relation to Goods and/or Services the subject of the Contract shall be paid by the Purchaser at the time of termination.
My Invisible CIO may (without liability or prejudice to its rights) terminate a Contract, cease supplying Goods and/or Services or performing any obligation, recover any amounts payable or enter any premises and repossess Goods at any time by written notice to the Purchaser if:
- a) a receiver, receiver manager, trustee, assignee, liquidator, or controller is appointed to the Purchaser or the whole of a material part of the business of the Purchaser; or
- b) an order is made or a resolution is passed for the winding up or dissolution without winding up of the Purchaser;
- c) the Purchaser, is deregistered, is placed into liquidation, whether voluntary or not, or becomes bankrupt or insolvent;
- d) the Purchaser breaching these terms and conditions.
Upon termination of a Contract:
- a) the Purchaser is not entitled to any compensation resulting from the termination;
- b) My Invisible CIO may, but is not be obliged to, complete any order from the Purchaser which is unfulfilled at the time of termination;
- c) My Invisible CIO is not obliged to accept any Goods in the possession of the Purchaser for return or credit;
- d) all monies owing by the Purchaser to My Invisible CIO become immediately due and payable.
The termination of the Contract does not affect any right or obligation that may have accrued prior to the termination.
If the Purchaser cancels or terminates an order or Contract without My Invisible CIO's consent, My Invisible CIO's is entitled to claim, as a genuine pre-estimate of loss arising from such breach of the Contract, liquidated damages as follows:
- 1.0 within 7 days of the acceptance date - 10% of the Purchase Price;
- 2.0 within 14 days of the acceptance date - 15% of the Purchase Price;
- 3.0 within 30 days of the acceptance date - 20% of the Purchase Price;
- 4.0 within 45 days of the acceptance date - 40% of the Purchase Price; and
- 5.0 within 60 days of the acceptance date - 50% of the Purchase Price.
- 5.1.1 The Purchaser acknowledges that no promise or representation not contained herein was an inducement to or was relied upon by the Purchaser.
- 5.1.2 The parties agree that any agreement or contract shall be governed by and construed in accordance with the laws of the state of New South Wales and the parties hereby irrevocably submit to the jurisdiction of the courts of that State.
- 5.1.3 No waiver of rights or other indulgence purported to be granted by My Invisible CIO to the Purchaser shall affect My Invisible CIO's rights or shall constitute a waiver or release of any breach committed by the Purchaser unless such waiver is in writing signed by the Managing Director of My Invisible CIO
- 5.1.4 Service of all notices under these terms and conditions shall be sufficient if delivered or sent by facsimile, certified or registered post to the party's business address or such other address as that party may from time to time notify in writing to the other.
- 5.1.5 The provisions of these terms and conditions and the rights and liabilities conferred by them are distinct and severable and any invalidity shall not affect another term, condition, liability or right.
- 5.1.6 Expenses will be billed monthly as actually accrued and are due on the presentation of our invoice. Expenses will include air, train, rental car , taxi, lodging, food,fax, copying, phone, courier, office support, and related expenses.
- 5.1.7 These are limited offers, My Invisible CIO reserves the right to change, amend or cease any promotion/offers at any time, without notice.