Terms and Conditions, Classida

1. Defined Terms

“Agreement” means the Order and these Terms.

“CLASSIDA” means Classida (ABN 71 604 032 912) and its assignees.

“Customer” means the customer of the Partner.

“Order” means an offer by a Customer to purchase Products from CLASSIDA.

“Products” includes any goods, services and materials and any combination thereof.

“Data Protection Legislation” means the Privacy Act 1988 (Cth), Australian Privacy Principals, and any legislation from time to time in force in any Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia) affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of data.

“Due Date” means, where Products are sold on credit, the date that payment for the Products (and all other amounts payable by the Customer) is due and payable within 30 days from date of invoice issued by CLASSIDA.

“End User” means the person or company using the Products, being either the Customer or the Partner as the case may be.

“Financing Statement” shall have the same meaning as assigned to this term under the PPSA.

“Intellectual Property Rights” means all rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade names, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights.

“Late Payment surcharge” means the charge on all amounts not paid by the Customer by the Due Date as described in clause 6.

“Partner” or “you” means the person or company placing the Order whether on its own behalf or on behalf of Customers.

“Personal Information” has the meaning given in the Privacy Act.

“PPSA” means the Personal Property Securities Act 2009 (Cth).

“PPSR” means the Personal Property Securities Register established under the PPSA.

“Restocking Fee” means the charge as described in clause 14 to cover the costs of handling goods returned (not being goods that are defective or damaged or that do not comply with the order or quote).

“Security Interest” means a security interest that is subject to the PPSA.

“Suppliers” means the suppliers of products and software components to CLASSIDA or directly to you on behalf of CLASSIDA.

“Terms” means these terms and conditions.

“Third Party Products” means any products, software or services supplied by Suppliers to CLASSIDA or directly to you.

2. Acceptance of Order

CLASSIDA may accept any Order in whole or in part. Shipping by CLASSIDA of Products for delivery pursuant to an Order (whether by single or multiple delivery) shall be taken as acceptance to the extent shipped. Accepted Orders (which includes forward orders and back orders) may not be varied or cancelled by the Customer without written approval from CLASSIDA and, subject to the provisions set out in clause 12, there is no right of return.

3. Credit granting

CLASSIDA may accept an Order and allow credit for part or all of its value or may accept an Order and require pre-payment as a condition of delivery. Credit approval once granted may be withdrawn at any time. Where credit approval has not been granted or is withdrawn, payment for all Products supplied is required before delivery. Where credit has been approved, all invoices issued by CLASSIDA are due and payable by the Due Date.

4. Price

The price of the Products shall be as agreed between the parties, as published, or otherwise, such amount as indicated on invoices provided by CLASSIDA regarding Products ordered. Prior to acceptance of an Order, CLASSIDA may change its published prices at any time without notice.

5. Freight and Handling charges

CLASSIDA may charge for freight and handling having regard to the mode of transport, distance and volume of Products supplied. The rates of charge are subject to change at any time without notice.

6. Late Payment surcharge

CLASSIDA may impose a Late Payment surcharge on any amounts not paid and undisputed by you or the Customer by the Due Date. The Late Payment surcharge is calculated at the rate of 1.5% of that amount per calendar month on any overdue amounts as from the Due Date and compounding monthly until paid.

7. GST

CLASSIDA reserves the right to recover from you any Goods and Services Tax (GST) payable in respect of supply of Products. Unless expressly included all amounts expressed or described in any agreement, price list or in invoices are GST exclusive.

8. Delivery

Delivery of Products may not be refused after an Order has been accepted by CLASSIDA. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by CLASSIDA. You shall make all arrangements necessary to accept delivery of the Products whenever they are tendered for delivery. In the event that you are unable to accept delivery of the Products as arranged, then CLASSIDA shall be entitled to charge a reasonable fee for redelivery. Delivery of the Products to a third party nominated by you is deemed to be delivered to you for the purposes of this Agreement. The failure of CLASSIDA to deliver by a time specified by you shall not entitle you to treat that contract as breached or repudiated. CLASSIDA shall not be liable for any loss or damage or expense arising from failure by CLASSIDA to deliver the Products promptly or at all. Where only partial delivery of an Order is made the Customer shall accept such delivery and be liable for payment thereof notwithstanding that other parts of the Order may be related. You acknowledge that delivery of the Products at a certain time and date cannot always be guaranteed by CLASSIDA. The reason for this is that CLASSIDA, from time to time, relies on Suppliers in respect of some of the Products provided by CLASSIDA. Accordingly, you will hold CLASSIDA harmless for any delay in the delivery of the Products caused by the Suppliers. In the event that any Third Party Products that are essential in order for CLASSIDA to provide the Products to you or the Customer are no longer available to CLASSIDA, CLASSIDA reserves the right to cancel some or all of the Orders made by you in which event a full or partial refund (if applicable and as the case may be) will become payable to you or the Customer. For the avoidance of doubt, if the Products are supplied directly to the Customer you are required to make the Customer aware of these Terms. If the Customer fails to comply with these Terms, you will be liable under this clause as if the Products were delivered to you.

9. Guarantee

The Signatory/ies hereby binds himself/themselves jointly and severally as surety and co-principal debtor/s in with the Partner in CLASSIDA’s favor of, its Order or assigns, for payment of any amount which is now or in the future becomes due or owing by the Partner to CLASSIDA.

10. Risk, Title and the Personal Property Securities Act

Products supplied by CLASSIDA to you or the Customer will be at your risk upon delivery to you or the Customer or into your or the Customer’s custody (whichever is the sooner).

Ownership of each unit of the Products will remain with CLASSIDA until all amounts owing by you or the Customer to CLASSIDA (including without limitation the purchase price of the Products and other debts between you or the Customer and CLASSIDA) have been paid in full.

Until all amounts owing by you or the Customer have been paid in full you or the Customer may sell the Products in the ordinary course of business but only as trustee and agent of CLASSIDA. You and the Customer must not represent to any third party that it is acting for CLASSIDA, and CLASSIDA will not be bound by any contracts with third parties to which you or the Customer are a party.

You or the Customer must hold the proceeds it receives from any sale of the Products as trustee and agent for CLASSIDA. All proceeds from the sale of the Products must be placed in an ADI account separate from its own monies and you or the Customer must not allow any person to have control of, or grant a security interest over the proceeds or the accounts in which they are held. You or the Customer must make immediate payment to CLASSIDA from the accounts in which the proceeds are held of all amounts which may be owing by you or the Customer to CLASSIDA.

Until all amounts owing by you or the Customer have been paid in full, you or the Customer may, subject to 9(c), take possession of the Products and hold them as trustee and agent for CLASSIDA. You or the Customer must store the Products in such a manner that they are readily distinguishable from the other goods held by you or the Customer and so they clearly show that they are the property of CLASSIDA.

If you or the Customer becomes insolvent or does not comply with any terms of this Agreement in relation to the payment of any amount owing to CLASSIDA or otherwise, then:

Immediately on CLASSIDA’s request, you or the Customer must return any Products acquired from CLASSIDA;
CLASSIDA may enter upon the premise (or where the Products are stored) and take possession of the Products; and
CLASSIDA may retain, sell or otherwise dispose of the Products.

If you or the Customer makes a payment to CLASSIDA at any time whether in connection with this Agreement or otherwise CLASSIDA may, at its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the Order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the Order in which those obligations were incurred.

You acknowledge that under this Agreement you grant a Security Interest to CLASSIDA, that CLASSIDA may register the Security Interest on the PPSR if permitted to do so under the PPSA and you agree to provide all assistance reasonably required to facilitate this.

You waive the right to receive a notice of a verification statement in relation to any registration on the PPSR.

If Chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interest arising in connection with this Agreement, you agree 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 CLASSIDA to give a notice to the Customer;
section 96 (when a person with an interest in the whole may retain an accession);
subsection 121(4) (enforcement of liquid assets – notice to grantor);
section 125 (obligation to dispose of or retain collateral);
section 130 (notice of disposal), to the extent that it requires CLASSIDA to give a notice to the Customer;
paragraph 132(3)(d) (contents of statement of account after disposal);
subsection 132(4) (statement of account if no disposal);
section 135 (notice of retention);
section 142 (redemption of collateral); and
section 143 (reinstatement of security agreement).

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

By providing the Products to the Customers you agree to enter into a contract for sale with the Customers on the terms set out in this clause 9 and associated clauses 15 and 16. In so far as permissible by law, you must ensure that any such contract between you and the Customers entitles CLASSIDA to register a Security Interest over the Customer in respect of the Products or any monies owning by you or the Customer to CLASSIDA in relation to the Products.

You shall indemnify CLASSIDA to the fullest extent permissible by law for any breach of clauses 9, 15 and 16 by you or the Customer.

11. Special Ordered Product

Direct costs may be added to any Product that has been specially ordered for you or a Customer (whether locally or from overseas) or which does not form part of the range in the current CLASSIDA published price list and shall not in any case be eligible for return.

12. Credit Card recovery of costs

A service fee may be charged to you or the Customer where payment is made by way of a credit card. The current service fees for Visa and MasterCard cards is 1.5% (including GST) but this rate may be varied by CLASSIDA without prior notice. No other cards are accepted. If the Customer makes direct payments to CLASSIDA, it is your obligation to inform the Customer about these charges.

13. Claims, Repairs and Returns

You shall inspect the Products on delivery and shall notify CLASSIDA in writing of any apparent defect, shortage in quantity, damage or failure to comply with the Order or quote. No claims for defective Products, shortage in quantity, damage or failure to comply with the Order or the quote will be accepted unless CLASSIDA is notified in writing within five (5) business days of delivery. For the avoidance of doubt, any claims made within the five (5) business day period referred to in the preceding sentence shall be subject to clause 18 of these Terms. You agree that you will not return any of the Products without first informing CLASSIDA and obtaining a Returns Authority Number (RAN) number issued by CLASSIDA. The issue of a RAN is not of itself any kind of admission or acceptance of a return. No credit or replacement shall be given or repair undertaken unless and until Products so returned have been verified as being defective or otherwise valid for repair or return by CLASSIDA. You shall be liable for a Restocking Fee on all goods accepted for return. The Restocking Fee shall not apply to goods returned for being defective, damaged or for failing to comply with the Order or quote. The current Restocking Fee is 15% of the price of the Products returned.

All freight, handling and other charges in relation to returning goods (other than goods defective, damaged or not ordered) are your responsibility. If the Products are supplied directly to the Customer you are required to make the Customer aware of these Terms. If the Customer fails to comply with these Terms, you will be liable under this clause as if the Products were delivered to you.

14. Set Off

You shall not be entitled to set off against or deduct from the price of Products sold any sums owed or claimed to be owed to you by CLASSIDA.

15. Disputed Charges

If you object to any invoiced item, you may withhold payment of the disputed amount but only if, on or before payment or the Due Date for payment (whichever first occurs), notice in writing of the dispute is given to CLASSIDA, setting out the details of the amount disputed, the reasons for the dispute, and the basis for calculating the disputed amount. CLASSIDA will investigate all disputes. If the amount is found to be payable (in whole or in part) then you must pay the due amount within 7 days of receiving notice and the basis of the decision. Invoiced amounts that are not objected to in writing within 30 days of the invoice date are deemed to be correctly charged. CLASSIDA will not accept any disputes directly from End Users unless you are the End User.

16. Credit Policy and Default

If you or the Customer defaults in payment of any invoice when due and payable, you shall indemnify CLASSIDA from and against all expenses costs and disbursements incurred by CLASSIDA in pursuing the debt including all reasonably charged legal costs on a “solicitor and own client” basis and the fees or commission charged to CLASSIDA by any mercantile agency. If you or the Customer fail to pay for the Products in accordance with invoices issued to you or the Customer, CLASSIDA may at its sole discretion do any one or more of the following:

cancel any provision of credit to you;
reverse any discounts allowed;
require cash pre-payment for any further Products ordered;
provide to a credit reporting agency details of the payment default;
commence legal proceedings against you (and any guarantors) for all outstanding amounts, interest and costs;
decline to supply Products to you or the Customer (even if the Order has been accepted and the goods are in transit);
terminate any other agreement with you; and exercise any other rights at law.

For the avoidance of doubt, by entering into this agreement you assume full liability for monies owed by the Customer to you, CLASSIDA or the Supplier. In the event a Customer does not pay CLASSIDA or the Supplier for any Products or Third Party Products (as the case may be), you acknowledge that CLASSIDA or the Supplier may recover any outstanding monies from you under this clause 15 and, in turn, you may recover any monies outstanding from the Customers.

17. Recovery

Notwithstanding any other provision to the contrary, but subject to the PPSA, if any amount is not paid by you or the Customer by the Due Date, CLASSIDA reserves the following rights in relation to the Products until all amounts owed by you or the Customer to CLASSIDA in respect of the Products and all other Products sold and other fees and charges are fully paid:

legal and equitable ownership of the Products;
to retake possession of the Products; and
to keep or resell any of the Products repossessed.

You hereby grants full leave and license without any liability to CLASSIDA and any person authorised by CLASSIDA on reasonable notice and subject to safety and security policies, to enter during business hours any premises where the Products may for the time being be placed or stored for the purpose of retaking possession of Products for which payment is overdue (subject to clause 14), if no loss, harm or damage is caused to the Products or to any other thing or item at those Premises. For the avoidance of doubt and, in accordance with clause 9, you must cause the Customers, by way of written agreement, to grant CLASSIDA the same benefits you have granted to CLASSIDA under this clause 16.

18. Returned cheques

An administration fee of $55.00 (including GST) plus all associated bank charges may be applied to any cheque payment returned unpaid by the bank for whatever reason.

19. Disclaimer and Limitation of Liability

You acknowledge that CLASSIDA acts as an agent in providing Third Party Products. Accordingly, CLASSIDA cannot and will not provide any guarantees with respect to the quality or availability of Third Party Products it provides via the engagement of Suppliers (which includes, but is not limited to, Cloud services). In the event that Third Party Products are no longer available or temporarily unavailable to CLASSIDA or there is a reduction in quality of the Third Party Products (whether temporarily or permanently) and therefore CLASSIDA can no longer provide all or part of the Third Party Products to you or the Customer, CLASSIDA will not assume any liability to you or the Customer for any losses incurred by you or the Customer as a result of the unavailability or reduced quality of the Third Party Products.

It is your responsibility to inform the Customer of the restrictions imposed by clauses 18(a) and 18(c) as part of your terms of sale to the Customer. In failing to do so, you will assume full liability of the Customer’s losses under this clause in the event such Customer brings a claim against you or CLASSIDA or a Supplier.

To the maximum extent permitted by applicable law, in no event will either party have any liability to the other party for any special, indirect, incidental, punitive or consequential loss or damage, economic loss in tort, loss of profit, revenue, business, goodwill or anticipated benefits, corruption or loss of data or loss of use of all or any part of any Products.

20. Intellectual Property

Nothing in this Agreement gives you or the Customer any interest or right in the Intellectual Property Rights of CLASSIDA or any Supplier.

You and the Customer may only use the Products in way that will not infringe the Intellectual Property Rights of CLASSIDA or the Suppliers.

The Customer is hereby granted a non-exclusive license to use the Products BUT SUBJECT ALWAYS to clause 20 below and subject to any end user agreements imposed by the Suppliers in respect of the Third Party Products which you must cause the End Users to enter into.

CLASSIDA may give such directions, impose such limitations as it thinks fit and require such undertakings as it deems necessary or reasonable in order to protect its Intellectual Property Rights or the Property Rights of a Supplier and you must comply with all those directions, limitations and give such undertakings in respect of such use of the Products.

21. Third Party Providers & End Users

You hereby acknowledge that CLASSIDA engages Suppliers for the supply of Third-Party Products to enable CLASSIDA to provide the Products to you and the Customer. Accordingly, you acknowledge and agree that:

The Third-Party Products are subject to certain rights of the Supplier, including but not limited to Intellectual Property Rights.
The Supplier will, at all times, retain ownership of any intellectual property licensed to the Customer or you (as the case may be) by way of clause 19 of this agreement.
You will not infringe the Intellectual Property Rights or copyright of any Supplier and if required by a Supplier, you agree to and, where applicable, cause the Customer to enter into a license agreement, end user agreement or accept any licensing terms or similar document from the Supplier in any form prescribed by such Supplier.
You must adhere to any terms provided by CLASSIDA or a Supplier as specified in any program documentation provided to you.
You must not modify any program or hardware provided by CLASSIDA through a Supplier without the written consent of CLASSIDA or such Supplier.
If you believe that a Supplier’s or CLASSIDA’s Intellectual Property Rights or copyright have been infringed, you must notify CLASSIDA and the affected Supplier within 14 days of becoming aware of this infringement.
You must accept any replacement hardware or software if so required by CLASSIDA or a Supplier as a result of a copyright or Intellectual Property Infringement.

You furthermore agree that you will cause your Customers to enter into a legally binding Agreement that includes a clause along the lines of the following:

“The customer agrees to use the software products only in accordance with the end user software license supplied with the software product and agrees that the vendors will have the right to enforce the terms of such end user software license directly, as licensor, against the customer despite not being a party to this contract for sale.”

Under which the Customer agrees to and indemnifies CLASSIDA and the Supplier in respect of the matters referred to in this Agreement including, but not limited to clauses 19 and 20, to the fullest extent permissible by law.

If a Supplier makes any claim against CLASSIDA as a result of a breach by you or the Customer of this Agreement (including, but not limited to clause 19 and this clause 20), you indemnify CLASSIDA to the fullest extent permissible by law in respect of any claim brought against CLASSIDA by the Supplier.

22. Warranty

Products are covered by manufacturers’ warranty. To the extent permitted by law, CLASSIDA’s entire responsibility with respect to warranties for the Products is to pass on to you the benefit of any such warranties. Subject to clause (c), software Products are not warranted by CLASSIDA under these Terms. Such software Products are warranted in accordance with the relevant license agreements governing their use.

To the extent permitted by law, the manufacturers’ warranties referred to in clause (a) are in substitution for all other terms, conditions and warranties, whether implied by statute or otherwise (including implied warranties with respect to merchantability and fitness for purpose) and all such terms, conditions and warranties are expressly excluded.

Certain legislation may imply warranties or conditions or impose obligations upon CLASSIDA which cannot be excluded, restricted or modified except to a limited extent. These Terms must be read subject to those statutory provisions. If those statutory provisions apply, to the extent to which CLASSIDA is able to do so, its liability will be limited, at its option, to:

in the case of Products: the replacement of the Products or resupply of equivalent products; repair of the Products; payment of the cost of replacing the Products or acquiring equivalent products; or the payment of the cost of having the Products repaired; and
in the case of services: the supply of the services again; or the payment of the reasonable cost of having the services supplied again.

CLASSIDA does not warrant that repair facilities or parts will be available in respect of any of the Products.

23. Assignment

You may not assign your rights or its obligations under this agreement nor subcontract any contract for the purchase of Products, without our prior written consent, where such consent must not be unreasonably withheld by us. However, in the event that you sell your business or for any reason cease to carry on business, you agree to assign your Customers that are currently End Users of CLASSIDA Products to CLASSIDA so that CLASSIDA may enter into supply agreements directly with such Customers.

24. Force Majeure

CLASSIDA will have no liability to you or the Customer in relation to any loss, damage or expense caused by CLASSIDA’s failure to complete an Order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock-out, war or the inability of CLASSIDA’s suppliers to supply necessary materials or any other matter beyond CLASSIDA’s control.

25. Privacy Information

CLASSIDA may give information about you or the Customer, its guarantors, directors or proprietors to a credit reporting agency for the following purposes:

to obtain a consumer credit report about you or the Customer, their guarantors, directors or proprietors;
allow the credit reporting agency to create or maintain a credit information file containing information about you or the Customer, their guarantors, directors or proprietors; and
to obtain commercial credit information about you or the Customer, their guarantors, directors or proprietors from a credit reporting agency.

It is your responsibility to make the Customers aware of this clause in written form prior to supplying Products to them. In doing so, you must provide Customers with CLASSIDA’s privacy policy and advise Customers that CLASSIDA may use and disclose their personal information to enable CLASSIDA provide the Products.

Each party must comply with Data Protection Legislation to the extent applicable to its performance of its obligations under this agreement.

26. Waiver of terms of agreement

The failure by either party to exercise, or delay in exercising, any right, power or privilege available to it under this agreement will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power.

27. Proper Law

The agreement is governed by and will be construed in accordance with the laws of the State of New South Wales and the parties agree to submit to the exclusive jurisdiction of the courts of the State of New South Wales.

Notwithstanding the foregoing, you must:

Comply with the laws of Australia and any international laws that may be applicable to the Products, including but not limited to laws relating to the intellectual property of the Suppliers; and
Use your reasonable commercial endeavours to ensure that the Customers or End Users comply with the laws of New South Wales, Australia and any international laws that may be applicable to the Products, including but not limited to laws relating to the intellectual property of the Suppliers.

28. Entire Agreement

This document represents the entire agreement between the parties and may not be amended except in writing signed by each of the parties and you acknowledge that in entering this Agreement it has not relied on any oral or written representation made by any person on behalf of CLASSIDA.

29. Your obligations in respect of Suppliers

For the avoidance of doubt, any indemnities provided under this Agreement by the Partners in favor of CLASSIDA shall extend to the benefit of the Suppliers.

You must use all reasonable commercial efforts to ensure that End Users comply with any end user agreements issued by the Suppliers.

You must provide CLASSIDA with copies of all end user agreements signed by Customers (where such agreements are in executable form) for provision by CLASSIDA to the relevant Suppliers.

You must comply with any trade mark usage guidelines provided by us to you on behalf of any Suppliers.

You must advise Customers of any applicable warranty guidelines and technical support guidelines issued by the Suppliers to you or provided to you by us.

Where applicable, you must enter into and comply with any software licensing agreements issued by Suppliers to you or provided to you by us where required by the Suppliers.

30. Products generally

You must not make any representations or warranty claims to third parties or employees with respect to the Products or Third Party Products.

You must not and, must ensure that the Customer does not, reverse engineer, decompile or dissemble any object code within the Products or the Third-Party Products.

You must not and, must ensure that the Customer does not, use the Products or Third-Party Products on a time sharing basis.

You must not and, must ensure that the Customer does not, sub-license or distribute the Products or Third-Party Products.

31. General

Each party may serve any notice or court document on the other party and on any guarantors by forwarding it by ordinary pre-paid post, in the case of the Partner, to the address of the Partner last known to CLASSIDA, in the case of CLASSIDA, to the address of CLASSIDA last known to the Partner and, in the case of any guarantor, to the address of the guarantor last known to CLASSIDA.

If any term of this Agreement shall be invalid, void, illegal or unenforceable, the remaining provisions shall not be affected, prejudiced or impaired. CLASSIDA may assign or license or subcontract all or any parts of its rights and obligations hereunder without the agreement or consent of the Partner or any guarantor.