These terms and conditions of sale (Terms and Conditions) apply to all sales of products and services (Products) by Peak Amplify Pty Ltd, its affiliates and/or its subsidiaries (Peak Amplify) to you (Customer). Peak Amplify and Customer are each a Party and together the Parties to the Terms and Conditions. Customer agrees to these Terms and Conditions, without addition or modification, when:
a) Customer sends a purchase order (PO), signed quotation or email acceptance of quotation to Peak Amplify; or
b) Customer accepts delivery of Products, whichever occurs first.
Peak Amplify accepts the Customer’s PO, signed quotation or email acceptance on the condition that Customer agrees to the Terms and Conditions, without addition or modification. In the event that Customer’s PO, signed quotation or email acceptance are deemed to be an offer, Peak Amplify’s acknowledgement and/or performance of the PO, signed quotation or email acceptance is conditioned on Customer’s acceptance of the Terms and Conditions, without addition or modification. Any terms on a Customer’s PO, signed quotation or email acceptance will always be null and void.
2. Order and Delivery.
Customer will order Products by sending Peak Amplify a complete PO, signed quotation or email acceptance. Peak Amplify may accept or reject the PO, signed quotation or email acceptance for any reason. Once a PO, signed quotation or email acceptance has been sent to Peak Amplify, Customer cannot cancel that PO, signed quotation or email acceptance.
Unless otherwise agreed by the Parties in writing, delivery of Products will be Ex-Works (EXW) (Inco terms 2010). The method of delivery will be at Peak Amplify’s discretion. Customer is responsible for insurance, transportation costs and all related expenses applicable to delivery of the Products to Customer’s nominated delivery site.
Customer must submit a claim, in writing, to Peak Amplify for any alleged shortages or rejections, within forty-eight (48) hours of the arrival of the Products at Customer’s identified delivery place (Short Shipment Claim). Failure to make such a claim will be deemed an acceptance, in full, of the delivery. Peak Amplify at its sole discretion can approve or reject any Short Shipment Claim. In the event that Peak Amplify accepts the Short Shipment Claim, Peak Amplify will, in its sole discretion, replace the lost or damaged Product or issue a credit adjustment. In the event that Peak Amplify does not approve the Short Shipment Claim, Customer will pay the total invoice.
3. Property and Risk.
Risk associated with the Product will pass to Customer upon delivery. Customer will insure the Product until title transfers from Peak Amplify.
Property in and ownership (Title) of the Product (excluding software) will not pass from Peak Amplify to Customer until Customer has paid for the Product in full and has discharged any and all indebtedness to Peak Amplify on any account whatsoever, including all applicable GST and other taxes, levies and duties. Title to software is not transferred at any time.
Until Title passes to Customer:
a) Customer will hold the Product as fiduciary and bailee for Peak Amplify;
b) The Product must be stored separately and in a manner to enable it to be identified and cross-referenced to particular invoices;
c) Peak Amplify, its employees or agents, are entitled to enter Customer’s premises between 9.00am and 5.00pm on any business day to inspect the Product;
d) Unless notified otherwise in writing by Peak Amplify, Customer is not authorised to sell the Product in the ordinary course of Customer’s business; and
e) The proceeds of Products sold by Customer must be held in trust for Peak Amplify until the invoice relating to those Products has been paid in full.
If payment is not made by Customer to Peak Amplify on the due date, Customer must deliver the Product to Peak Amplify on demand. If the Customer does not comply with such demand, Peak Amplify, its employees or agents are entitled:
a) to enter Customer’s premises at any time to do all things necessary in order to take possession of the Product, and Customer:
i. must procure the consent of all persons having an interest in the premises where the Product is situated, to entry into the premises by Peak Amplify, its employees or agents; and
ii. indemnifies Peak Amplify against any claim, loss, liability, cost and expense that may be incurred or sustained by Peak Amplify, its employees or agents as a result of entry into those premises where the Products are situated; and
b) with or without taking possession of the Product, to sell it as Peak Amplify sees fit; and
c) to be paid by Customer for the costs and expenses incurred by Peak Amplify of any legal advisers on a solicitor-client basis, mercantile agents and other agents acting on Peak Amplify’s behalf in respect of the recovery or attempted recovery of either the money owing by Customer to Peak Amplify or possession of the Product.
Until Title passes to Customer, the Product is not to be affixed to any of its premises and Customer must ensure that the Product may be removed from those premises without causing damage of any kind to the premises.
Customer’s right to hold the Product will immediately cease if:
a) an administrator or controller within the meaning of Section 9 of the Corporations Act 2001 (Cth) (or equivalent provision and/or legislation in non-Australian jurisdictions), or similar officer is appointed to all or any assets or undertaking of Customer; or
b) an order is made or resolution passed for the winding up of Customer; or
c) Customer is deregistered; or
d) if Peak Amplify believes in its sole discretion, and without having to provide any reasons, that its interests are or are likely to be in any way imperilled by an act or omission on the part of Customer or any of its servants or agents or any one or more of its creditors.
In any such case, and without the need for notice or demand by Peak Amplify, Customer acknowledges any subsequent sale or purported sale of the Product will not be in the ordinary course of Customer’s business and the proceeds of any Product sold in such circumstances will be held in trust for Peak Amplify by the administrator, controller, receiver, liquidator or similar officer as the case may be, or if there is no such officer, by the Customer.
Product invoiced to Customer and held by Peak Amplify at Peak Amplify’s premises for any reason shall be held at Customer’s risk and expense. Peak Amplify will be entitled to invoice Customer for the cost of storage. Such invoice must be paid in accordance with the payment terms in section 4.
This Section 3 is not intended to create a charge and shall be read down to the extent necessary to avoid creating a charge.
4. Price, Payment and Title.
Prices for Products will be set forth in Peak Amplify’s price list (as amended). Prices do not include any taxes, unless indicated.
Payment is due thirty (30) days from the date of invoice, except that cash on delivery accounts are due prior to delivery. Title to the Product does not pass to Customer until full payment has been received by Peak Amplify. Payments may be made by bank cheque, by funds transfer to Peak Amplify’s bank account or as nominated by Peak Amplify. Peak Amplify reserves the right to withhold delivery of any part of an order or to require pre-payment for any given order if Customer does not make timely payment.
Customer will pay all applicable taxes, duties, licenses, excises and tariffs levied upon the sale, purchase or delivery of Products. Peak Amplify reserves the right to require prepayment for the whole or part of the price of the Products before accepting any order or part order.
If payment has not been made in full by the due date, Peak Amplify may charge Customer interest compounding monthly on the unpaid overdue balance at the rate of fifteen percent (15%) per annum. Customer will pay Peak Amplify’s associated costs (including collection costs and legal costs on a solicitor-client basis). Additionally, Peak Amplify will be entitled to suspend delivery of further goods or performance of further services.
5. Returns and Warranty Assistance Service.
Peak Amplify makes no warranties or representations of any kind regarding the Product. At Peak Amplify’s sole discretion, and to the extent that a manufacturer permits, Peak Amplify may approve a Customer return claim and/or provide assistance with a warranty claim. Peak Amplify’s approval will be subject, but not limited, to:
a) The Product for return being formally requested by emailing [email protected];
b) The Product being returned to Peak Amplify within ten (10) days of the invoice date;
c) The Product being cancellable and returnable to the manufacturer;
d) The current price of the Product being the same as the Customer’s purchase price;
e) The Product being new, unopened and unused;
f) The Product being in its original packaging, undamaged and unaltered;
g) Customer’s account with Peak Amplify being current and paid;
h) Customer paying Peak Amplify a restocking fee for the returned Product.
All transportation costs related to a pick-up and delivery of a Product under this clause will be borne by Customer unless covered by the manufacturer in accordance with its warranty terms.
All Products are subject to their manufacturers’ warranties only. Customer agrees that the terms and conditions of such a warranty accompanies the Product and, if breached, will void the warranty.
Customer will not be entitled to the benefit of any warranty if any Peak Amplify invoices are overdue.
6. Disclaimer and Limitation of Liability.
Peak Amplify disclaims all representations and warranties, express or implied, as to the Products, including, without limitation, any implied warranty of merchantability, intellectual property or fitness for a particular purpose. In no event will Peak Amplify be liable for any loss, damage or cost for breach of warranty. Peak Amplify will not, in any event, be liable for any loss of revenue, profit, use of data, interruption of business or for special, indirect, consequential, incidental, exemplary or punitive damages, however caused and regardless of the theory of liability, arising out of the use of or inability to use the Product, or in any way connected to this agreement, even if Peak Amplify has been advised of such damages. The foregoing limitation of liability applies whether any claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, or otherwise. In no event will Peak Amplify’s liability to Customer exceed the purchase price paid for the Product that is the basis for the claim.
7. Credit Adjustments and Refunds.
Credit adjustments may be available to Customer at Peak Amplify’s sole discretion and in accordance with Peak Amplify’s policies in respect of Product returns, co-operative advertising, rebates and allowances (Credit Adjustments). Credit Adjustments can be applied to a Customer’s balance. In the event of an overpayment, and upon receipt of a request from Customer, a refund will be issued as a credit on Customer’s account.
8. Compliance with Laws.
Customer will comply with any and all applicable laws related to its activities, pursuant to the Terms and Conditions, in the relevant territory. Customer must obtain and maintain all applicable licenses, permits and approvals necessary to perform its obligations under the Terms and Conditions.
9. Confidential and Proprietary Information.
Customer acknowledges that all non-public information, disclosed by Peak Amplify as a result of performance of these Terms and Conditions shall be deemed confidential and proprietary information of Peak Amplify. Customer agrees not to disclose or use such information except:
a) in connection with these Terms and Conditions, or
b) as required by law to do so. Customer agrees to promptly notify Peak Amplify of any subpoena or court order compelling disclosure.
10. Data Protection and Privacy.
In relation to any personal information (Personal Information) (that is, any information or opinion about a natural person, including as that term is defined in the Privacy Act 1988 (Cth) or equivalent legislation in non-Australian jurisdictions (Privacy Act) provided to or accessed by Peak Amplify, or any third parties who contract with Peak Amplify or with Peak Amplify’s contractors, in connection with the supply of the Product (together, Peak Amplify and Third Parties), Customer warrants:
a) that it has taken all steps necessary, and has ensured that its agents, contractors and end users have taken all steps necessary (including providing privacy statements to and obtaining privacy consents from relevant individuals) to ensure that Peak Amplify and Third Parties are able to access and process (both within and outside Australia) the Personal Information in compliance with all applicable legislation, principles, industry codes and policies by which Peak Amplify and Third Parties are bound (including, without limitation, the Privacy Act); and
b) that all Personal Information and any other information that Peak Amplify and Third Parties cannot legally access have been excluded from any data provided to Peak Amplify and Third Parties.
Customer will provide Peak Amplify with evidence of such steps taken (including copies of privacy statements and consents) upon request.
Customer agrees to take all steps requested by Peak Amplify to assist Peak Amplify to comply with all applicable legislation, principles, industry codes and policies (including, without limitation, the Privacy Act). Customer will take no action that would cause Peak Amplify and Third Parties to breach their obligations under any privacy laws.
Customer indemnifies and holds Peak Amplify and all third-party contractors harmless for any and all losses or damages resulting from any breach by Customer of this Data Protection and Privacy section.
Peak Amplify may use and/or disclose any information Customer provides for purposes including, but not limited to, credit, administration, sales and marketing. Customer authorises any person or company to provide Peak Amplify or Peak Amplify’s agent(s) such information as necessary in relation to Customer’s credit or other information. Customer authorises Peak Amplify to supply any details relating to the Customer to a third party where Peak Amplify deems necessary.
11. Errors and Omissions.
All errors or omissions, whether in computation or otherwise, in any quotation, acknowledgement or invoice, shall be, without penalty, subject to correction by Peak Amplify.
12. Use of Products.
Products must only be used for authorised purposes, as set out by Peak Amplify or the manufacturer. Products are not authorised for use in nuclear, critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Customer uses or sells the Products in any of the above applications, it does so at its own risk and indemnifies Peak Amplify against any liabilities or costs resulting from such use.
Peak Amplify will be entitled, with prior notice, to audit Customer’s compliance with the Terms and Conditions. If Customer does not comply with the Terms and Conditions or if breaches are identified during the audit process, Customer must refund or reimburse Peak Amplify any monies owed as a result of such non-compliance including the cost of such audit or, if appropriate, Peak Amplify may offset any amounts due to Customer.
14. Ad-hoc services.
On a case by case basis and subject to additional Fees, Peak Amplify may agree, in its sole discretion, to provide the Customer with any installation or other professional services using best efforts only and on reasonable and lawful directions of the Customer.
15. Change requests.
(a) A Change to a Quotation will be effected by:
(i) either Party submitting a Change Request to the other Party; and
(ii) if the Parties agree, Peak Amplify will provide an amended Quotation that will include the specifications for the Change, an estimate of the timing for performance of the Change and any adjustment to the Fees for the Change.
(b) The amended Quotation provided by Peak Amplify in accordance with clause 15(a)(ii) will be binding on the Parties, when it is agreed in writing by the Parties.
The Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Victoria, Australia, without regard to its conflicts of law principles. The United Nation’s Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Terms and Conditions. The parties agree that the state and federal courts located in Victoria, Australia, shall have sole and exclusive jurisdiction and venue over any matter arising out of the Terms and Conditions and each party hereby submits itself and its property to the venue and jurisdiction of such courts. Each party irrevocably waives any objection that it may now or hereafter have to the laying of venue of any such proceeding in such court, including any claim that such proceeding has been brought in an inappropriate or inconvenient forum.
Peak Amplify’s failure to insist upon strict performance of any of the provisions of the Terms and Conditions will not be deemed a waiver of any breach or default.
Each of the Parties represent it has the authority to enter into and agree to these Terms and Conditions.
Any notice given to either Party will be in writing and effective by transmission via email or regular mail to the address indicated in a credit application or agreement, or as advised in writing by the Party receiving notice.
Customer will reimburse Peak Amplify all collection costs, including solicitors fees and costs, incurred as a result of the enforcement or an attempted enforcement of any provision hereof or collection of any sum due from Customer.
If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will remain in full force and effect, and shall be construed in the manner that most closely reflects the intention of the Parties in executing the provision.
Peak Amplify will not be liable for any delay or failure in performance whatsoever due to any cause or circumstance outside its reasonable control including, but not limited to, acts of God, earthquakes, shortage of supplies, transportation difficulties, labour disputes, riots, war, fire, epidemics, manufacturer delays and similar occurrences.
The Terms and Conditions may be amended or modified by Peak Amplify from time to time.
These Terms and Conditions constitute the entire agreement between the parties as to the sale of Products and supersede all prior or current written or oral statements, representations, negotiations, agreements and understandings to the extent that prior or current agreements modify or are inconsistent with the Terms and Conditions. Prior or current agreements that do not modify and are consistent with these Terms and Conditions are made a part hereof.