To the extent permitted by law, the following terms and conditions apply to all Goods and Services supplied by HERITAGE IT PTY LTD (“HIT”). 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 HIT has entered into a credit account.
• “Business Day” means Monday to Friday inclusive, except gazetted public holidays applicable to the location defined as Brisbane, Queensland, Australia.
• “Business Hours” means the hours between 8:30am and 5:00pm of a Business Day in Brisbane, Queensland, Australia.
• “Confidential Information” means any trade secrets, embodied in any information relating to, that may be considered to be “commercial in confidence” whether or not expressly marked “confidential” 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 that is not already in the public domain.
• “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, invoice, credit note or other specifications applicable to the sale or supply of Goods and Services by HIT.
• “Deliverables” means any materials, products or configuration of software or hardware resulting from the Services provided by HIT to the Customer in accordance with and as specified in a Statement of Work.
• “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.
• “Helpdesk Support” means the provision of assistance with day-to-day operational matters relating to the software or system, provided by HIT to the Customer as described in a Proposal or Invoice. This specifically excludes services of a normal consulting nature.
• “Helpdesk Support Channels” means the Hotline, email address or after-hours number made available by HIT to register a support request.
• “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 to deliver the goods and services.
• “Intellectual Property Rights” means any intellectual and industrial property rights or entitlements throughout the world including those in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks and designs, whether or not now existing and whether or not registered or registrable, as well as any right to apply for the registration, renewals and extensions of those rights, and any other Intellectual Property Rights as defined in Article 2 of the World Intellectual Property Organisation Convention of 1967.
• “Price” is the amount set out in the Customer Document for the Goods or Services required by the Customer and unless specifically noted, 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 HIT of the required Goods or Services.
• “Services” includes professional services, support services, hosting services, managed services and any other services that may be offered.
• “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. Third Party Software supplied is delivered to the Customer by HIT in its capacity as an authorised reseller, not a licensor.
• “Terms of Trade” unless otherwise advised or specified in a customer document, HIT standard terms of trade for an Approved Credit Account Customer, are 50% deposit required with order for all hardware and software, with the balance payable COD. Services performed under a Support Agreement are payable on receipt of the invoice. Consulting and other charges are payable in 7 days from Invoice date. Trading Terms for customers without an approved credit account, are COD in all circumstances.

GOODS & SERVICES: ORDERS AND DELIVERIES

Orders for Goods on credit will only be accepted from Approved Credit Account Customers. Such customers will need to have completed and submitted a Credit Application and have received confirmation of approval prior to any supply on credit.

Goods or 3rd party Services (where applicable) may only be procured upon receipt of a Purchase Order or equivalent approval from the Customer.

Once a purchase order or written approval has been received by HIT, 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 or provision of any services.

Prices quoted by HIT 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. Orders are accepted on the basis that HIT reserves the right to vary the prices payable by Applicant to accord with those ruling at the date of dispatch except where prior negotiation allows an order on an alternative basis.

HIT will arrange for Goods to be shipped by an authorised Courier to the Customer’s nominated delivery address, unless the applicant nominates their own carrier. In either case, HIT takes no responsibility for the goods once received by or delivered to the carrier or freight forwarder. The goods are deemed to have been received in good order and condition at that time. Freight and insurance charges during transit are the responsibility of the applicant.

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.

Estimated delivery dates are based on information available to HIT from suppliers and are subject to change at any time, without prior notice. HIT is not responsible for delays in delivery caused for reasons beyond our control. HIT is not liable for delay in delivery of the Goods or services, howsoever caused.

Goods and Services Tax is included in quoted prices unless otherwise stated but will be charged to Applicant’s account where applicable.

PERFORMANCE OF SERVICES

Unless otherwise agreed, Services will be performed during Business Hours of Business Days, in accordance with the applicable Customer Document. HIT will perform the Services utilising such resources, employees and subcontractors as we deem appropriate.

PAYMENT

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.

A customer may apply to be considered for an Approved Credit Account by completing the application form process and agreeing to the general terms and conditions.

Payment by Approved Credit Account Customers is to be made in accordance with the agreed terms of credit, the terms shown on the Invoice, or in the case of projects, the terms specified, including progress payments, and agreed to in the Quotation or Proposal document.

Payment by Customers will be by online payment gateway or direct bank account deposit when possible. For customers in Australia only, payment can be made via cheque, payable to “HERITAGE IT Pty Ltd" and mailed to PO Box 1344, MILTON QLD 4064.

DEFAULT & CONSEQUENCES OF DEFAULT

To the extent a customer is a credit customer, HIT may, in its sole discretion, suspend the provision of credit to the customer at any time until all amounts owing are paid for in full.

If the customer does not pay any amount due by its due date for payment, the Customer is liable, at the absolute discretion of HIT, to pay interest on such an overdue amount from the due date until payment is received calculated at 24% pa (2.0% per calendar month) for the number of days outstanding.

If the customer owes HIT any money, the customer shall indemnify HIT from and against all costs and disbursements incurred by HIT in recovering the debt including but not limited to internal administration fees, legal fees and charges on a Solicitor or Lawyer and own client basis, filing fees, stamp duty, taxes or any other fees payable, or incurred in relation to such recovery process.

INSPECTION, ACCEPTANCE, OWNERSHIP, RISK

Risk of loss or damage of Goods passes to the Customer upon collection or delivery, or where the customer has nominated their preferred carrier, when delivered to or collected by that carrier.

Notwithstanding passing of risk, HIT retains ownership of Goods until payment has been made in full and the applicant acknowledges that it is in possession of these goods as a Bailee of HIT.

Until title in the Goods passes to the Customer, it is the Customer’s responsibility to separately store, identify and insure the Goods appropriately.

Upon non-payment within the trading terms HIT is entitled to retrieve the Goods. When called upon to do so, the Customer must deliver up the goods to HIT. The Customer indemnifies HIT against any claim, action or damages arising out of any such action, and against the cost, including recovery costs of the same.

It is the Customer’s responsibility to inspect all Goods upon delivery.

Unless the Customer notifies HIT in writing, to the contrary within 24 hours of delivery, the Goods will be deemed to have been accepted by the Customer.

Customer hereby consents to HIT registering on the Personal Property Securities Register (PPSR) all Security Interests granted by or pursuant to this agreement.

• Customer agrees to do, at Customer's own expense, all things necessary, including executing all documents and providing all relevant information, and otherwise co-operating fully with HIT to enable HIT to register and maintain a financing statement on the Personal Property Securities Register in order to ensure that HIT has a perfected Security Interest in relation to all Security Interests created by or pursuant to this agreement and where applicable, a Purchase Money Security Interest in respect of the goods.
• Customer must not grant any other Security Interests in the Products which would rank equally with, or in priority to, a Security Interest held by HIT over those Products under this agreement except with the prior written consent of HIT.
• As between debts owed to HIT secured by Purchase Money Security Interests and other debts, HIT will be entitled to apply monies received from Customer against other debts first at its sole discretion and despite any direction from Customer to the contrary.
• To the extent the law permits:
  • for the purposes of sections 115(1) and 115(7) of the Personal Property Securities Act 2009 ("PPSA"):
    • HIT need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4); and
    • sections 142 and 143 are excluded;
  • for the purposes of section 115(7) of the PPSA, HIT need not comply with sections 132 and 137(3);
  • if the PPSA is amended after the date of this document to permit Customer and HIT to agree to not comply with or to exclude other provisions of the PPSA, HIT may notify Customer that any of these provisions, as notified to Customer by HIT; and
  • Customer agrees not to exercise its rights to make any request of HIT under section 275 of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.
• If HIT exercises a right, power or remedy in connection with this agreement, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless HIT states otherwise at the time of exercise. However, this clause does not apply to a right, power or remedy which can only be exercised under the PPSA.
• To the extent the law permits, Customer waives:
  • its rights to receive any notice that is required by:
    • any provision of the PPSA (including a notice of a verification statement); or
    • any other law before a secured party or receiver exercises a right, power or remedy; and
  • any time period that must otherwise lapse under any law before a secured party or receiver exercises a right, power or remedy. If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer). However, nothing in this clause prohibits HIT or any receiver from giving a notice under the PPSA or any other law.
• For the purposes of this clause 6, the terms financing change statement, financing statement, Purchase Money Security Interest, Personal Property Securities Register, Security Interest and verification statement have the meanings given in the PPSA.

SERVICES WARRANTY

HIT 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.

GOODS WARRANTY

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 HIT will carry the warranty provided by the manufacturer of the Goods. HIT cannot provide any additional or implied warranty in relation to the Goods. Further, HIT does not recommend any particular product.

If the applicant sells the goods or any part thereof at any time before payment in full is received, whether by way of retail sale, as part of Applicant’s stock in trade or otherwise:
the proceeds of sale will be the beneficial property of HIT
Applicant will keep the proceeds of sale in a separate trust account for HIT such that the proceeds of sale are not incorporated with general funds of Applicant
Applicant will account to HIT for the proceeds of sale if required to do so.

To the extent permitted by law, HIT, the distributor of products makes no representation that the software or products will be of merchantable quality or fit for any purpose or will perform any or all of the functions it purports to. HIT, as the distributor is not responsible for the production of the software or products and gives no warranty in respect to it.

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 HIT for a credit, provided that:

• The Goods are returned within 30 days of the invoice date;
• The goods are complete and in their unopened original packaging;
• Opened or modified software may not be returned;
• Depending on the reason for return of the Goods, a HIT restocking fee of 15% if returned within 15 days of delivery, or 25% after 15 but less than 30 days is chargeable. The customer is responsible for insuring the goods and reimbursement of any freight or other costs associated with the return, including to the original supplier;
• 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 HIT.

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 HIT at Customer’s cost for replacement or refund.

HIT will not accept the return of the Goods unless such return is expressly authorised by HIT. The process for returning Goods is as follows:

• The Customer must advise HIT in writing of their intention to return the Goods, detailing the nature of the fault.
• HIT 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 HIT to credit or replace the Goods.
• HIT will advise the Customer as to the outcome of the return request, but no credit or refund will be issued until the manufacturer or distributor has issued an acceptance of the returned product.
• If the return request is approved, HIT will provide a return authorization label to the Customer which must be affixed to the Goods and returned as per HIT’s instructions.
• A return authorization is valid for 14-29 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, HIT 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. HIT will comply with its statutory obligations in this regard.

PRIVACY

Customer agrees to HIT collecting, using and disclosing certain personal information about Customer for various purposes, including to:

• assess credit worthiness;
• supply the Products and services to Customer and the management of Customer's account, including suppliers;
• communicate with Customer about the Products and services which HIT or its partners or affiliates may provide to Customer;
• implement these Terms and the Credit Terms; and
• comply with relevant laws.

HIT's full Privacy Policy can be found at www.heritageit.com.au/privacy-policy

HIT, at the written request of Customer, will:

• provide Customer with access to any personal information relating to the Customer, held by HIT; and
• correct or amend any personal information relating to Customer held by HIT which is inaccurate or out of date.

HIT will handle Customer's personal information in accordance with the provisions of the Privacy Act 1988.

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. HIT’s liability in aggregate for all claims made against HIT in contract, tort or any other common law or statutory cause of action in connection with this Contract is limited to:

• In respect of Goods, the component of the Price paid for such Goods under this Contract.
• 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 HIT’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 HIT 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 HIT RESOURCES

A Customer must not solicit or endeavour to directly procure the Services of any resource, employee or subcontractor of HIT 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 that has terminated their employment by HIT within a period of six months of their termination, without payment of a placement fee as agreed between the parties.

GENERAL PROVISIONS

HIT 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, Australia.