Terms and Conditions for MIT Intranet Pty Ltd trading as Channel Partners
(ABN: 43 133 710 255)
1.1 These Terms and Conditions apply to the sale by MIT Intranet Pty Ltd, trading as Channel Partners ("CHANNEL PARTNERS") of all goods ("Products") to you as a CHANNEL PARTNERS reseller ("Partner").
1.2 Third party terms and conditions, such as a Manufacturer Reseller Authorisation, if any, warranty or shrink wrapped software license, or statements of work or terms and conditions of any third parties who perform services, govern the relationship between the third party and Partner for product or service .
1.3 These Terms and Conditions (and any attachments, annexures or exhibits) and any written invoice from CHANNEL PARTNERS to Partner for Products ("Invoice") are deemed to be a conclusive record of the entire agreement and understanding between CHANNEL PARTNERS and Partner with respect to the subject matter to which they relate.
1.4 These Terms and Conditions and any Invoice may not be amended or varied unless agreed in writing by the parties.
2 Liability and Indemnity
2.1 CHANNEL PARTNERS will transfer to Partner any Product warranties and indemnities authorised by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement.
2.2 Any claims by Partner in respect of Products must be notified in writing to CHANNEL PARTNERS within seven days after the Products have been Delivered and if Partner does not do so, Partner is deemed to forever release and discharge CHANNEL PARTNERS from all actions, suits, charges, claims and demands which relate directly or indirectly to the Products.
2.3 Partner acknowledges and agrees with CHANNEL PARTNERS that CHANNEL PARTNERS has given Partner no warranty as to the fitness of the Products for any particular purpose or that the Products are of merchantable quality and any term, warranty, condition, representation or obligation whether express or implied and whether as to quality, fitness for any particular purpose or otherwise relating to the Products which is not expressly stated herein is expressly excluded from these Terms and Conditions to the extent permitted by law.
2.4 Partner agrees that CHANNEL PARTNERS, to the extent permitted by law, accepts no responsibility or liability whether in contract or tort (including negligence or breach of statutory duty) or otherwise for any loss, damage, cost or expense of any kind whether direct, indirect or consequential (including for loss of profits, business or anticipated savings): (a) arising directly or indirectly out of or in respect of the use, custody or supply of the Products; or (b) caused directly or indirectly by the inadequacy of the Products for any purpose or any defect in the Products and Partner releases and forever discharges CHANNEL PARTNERS from all such responsibilities and liabilities and any claims, demands or causes of action in respect thereof.
2.5 Partner hereby indemnifies CHANNEL PARTNERS against any liability, loss, damage, cost or expense suffered or incurred by CHANNEL PARTNERS as a result of CHANNEL PARTNERS taking any action or exercising any of its rights under these Terms and Conditions, including but in no way limited to any debt collection costs and related legal costs.
2.6 Partner shall, to the extent permitted by law, indemnify and keep indemnified CHANNEL PARTNERS against any actions, proceedings, claims or demands (including negligence or breach of statutory duty) for loss, damage, cost or expense whether direct, indirect or consequential (including for loss of profits, business or anticipated savings) brought, made or threatened against CHANNEL PARTNERS by any third party arising directly or indirectly out of or in respect of the use, custody, purchase or supply of the Products.
2.7 If, notwithstanding the forgoing provisions, CHANNEL PARTNERS is held liable in respect of the Products, its liability will be limited at CHANNEL PARTNERS' option to any of the following as determined in the sole discretion of CHANNEL PARTNERS: (1) the repair or restoration of the Products, or (2) the replacement of the Products or supply of equivalent Products at no cost to Partner; or (3) the refund of Partner's purchase price or (4) the payment by CHANNEL PARTNERS of the costs of having the products repaired or replaced.
3 Software Intellectual Property
3.1 If an order for Products includes software or other intellectual property of a third party, such software or other intellectual property is provided by CHANNEL PARTNERS to Partner subject to the terms and conditions of the licence agreement relating to that software or other intellectual property. Partner acknowledges that CHANNEL PARTNERS does not provide any warranty with respect to any software or intellectual property under these Terms and Conditions.
3.2 Nothing in these Terms and Conditions shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted in writing. 3.3 Unless otherwise provided herein, CHANNEL PARTNERS is not the licensor and Partner acquires the license directly from the third party provider or the third party provider's authorised licensor. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and /or user licenses.
4.1 All orders are subject to acceptance by CHANNEL PARTNERS.
4.2 Orders for special, custom, value-added Products and Products specifically identified by CHANNEL PARTNERS as non-standard are non-cancellable and, once the Products are Delivered, they are non-returnable .
4.3 Orders for standard Products may not be cancelled or rescheduled unless: (a) written notice of intention to cancel or reschedule the order is given to CHANNEL PARTNERS within seven days after the date of the order; (b) CHANNEL PARTNERS consents to the cancellation or rescheduling of the order, which consent shall not be unreasonably withheld; and (c) Partner pays to CHANNEL PARTNERS any amounts necessary, as determined by CHANNEL PARTNERS, to indemnify CHANNEL PARTNERS against any loss or damage resulting from the cancellation or rescheduling.
5 Product Return
5.1 Products cannot be returned without a return material authorisation ("RA") number.
5.2 Returned Products must be in original manufacturer's shipping cartons or equivalent. 5.3 All Products must be returned, freight prepaid, as specified in the RA. Products not eligible for return will be returned to Partner freight collect, or at CHANNEL PARTNERS option, held for Partner's account at Partner's expense.
6.1 CHANNEL PARTNERS quoted prices apply for 3 days or as otherwise stated in its quote.
6.2 Prices may increase in the event of an increase in CHANNEL PARTNERS costs or other circumstances beyond CHANNEL PARTNERS reasonable control.
6.3 Unless otherwise specified, prices are for Products only and do not include taxes, impositions and any other charges, fees, shipping charges and duties imposed by any government authority, which additional fees and taxes are the responsibility of Partner.
7. Terms of Payment
7.1 Partner must pay CHANNEL PARTNERS the total Invoice amount ("Purchase Price"), without offset or deduction, within 30 days from the date of the Invoice, or in accordance with the payment terms agreed to between the parties.
7.2 If the Purchase Price is not paid in full in accordance with clause 7.1, Partner will, if required by CHANNEL PARTNERS, pay interest on the unpaid amount from the payment due date to the date the Purchase Price is paid in full (at the annual 3 percentage rate charged by CHANNEL PARTNERS of 2%), and will pay to CHANNEL PARTNERS any debt collection costs and related legal costs.
7.3 CHANNEL PARTNERS may change the terms of Partner's credit at any time. 7.4 Payments may be applied to any Partner's account by CHANNEL PARTNERS in its discretion.
8.1 Partner acknowledges that any delivery dates are an estimate only and that whilst CHANNEL PARTNERS will use reasonable endeavours to deliver the Products on or before the delivery date, CHANNEL PARTNERS does not warrant or represent that Products will be delivered on the delivery date.
8.2 CHANNEL PARTNERS will not be liable under any circumstances for any loss, damage or delay occasioned to Partner arising from late or non-delivery of all or some of the Products nor shall Partner be entitled to treat this Agreement between Partner and CHANNEL PARTNERS as repudiated if some or all of the Products are not delivered on or before the delivery date.
8.3 Partner agrees that if it fails or refuses to take delivery of the Products then CHANNEL PARTNERS may, in its sole discretion and without prejudice to any of its other rights, store those Products at the risk and expense of Partner.
8.4 If CHANNEL PARTNERS is unable to deliver the Products to Partner on or before the delivery date for any reason whatsoever beyond the control of CHANNEL PARTNERS including but not limited to industrial dispute, fire or Act of God, then CHANNEL PARTNERS may: (a) deliver those Products to Partner after cessation of any such disabling event and these Terms and Conditions will continue to have full force and effect as though the delivery was made on or before the delivery date; or (b) rescind these Terms and Conditions in which case Partner will have no recourse against CHANNEL PARTNERS except for a refund of any part of the Purchase Price paid in respect of those Products.
8.5 Where Partner requests CHANNEL PARTNERS to arrange for transportation of the Products, Partner must pay for all carriage charges and expenses including cartage and insurance.
8.6 Where Products are placed with an independent carrier, the carrier will be deemed to be an agent of the CHANNEL PARTNERS and not of Partner for the purposes of Sections 50, 51 and 52 of the Goods Act 1958 (Vic).
8.7 Where Products are transported by CHANNEL PARTNERS or a contractor engaged by or on behalf of CHANNEL PARTNERS, CHANNEL PARTNERS shall be under no liability whether in tort or contract for any loss or damage to those Products or delay in delivery whether or not such loss, damage or delay is caused by the negligence or wilful act or omission of CHANNEL PARTNERS or its contractors.
9 Retention of Ownership
9.1 The risk of loss or damage to the Products will pass to Partner on the first to occur of the Products being Delivered or being placed with a carrier for delivery to Partner.
9.2 Notwithstanding clause 9.1, property in and ownership of the Products (excluding software) will not pass from CHANNEL PARTNERS to Partner until Partner has paid for the Products in full and has also paid CHANNEL PARTNERS all other amounts owing on any account whatsoever by Partner. Title to software is not transferred at any time.
9.3 Until property in and ownership of the Products passes to Partner, Partner will, from the time those Products are delivered, take custody of the Products as fiduciary agent and bailee for CHANNEL PARTNERS and will ensure that the Products are properly stored in a manner to enable them to be identified as the property of CHANNEL PARTNERS and are properly protected and insured. 9.4 When Partner has custody of the Products as the fiduciary agent and bailee of CHANNEL PARTNERS under clause 9.3, Partner may re-sell such Products but only as the fiduciary agent of CHANNEL PARTNERS. Partner cannot, however, incur any liability for or on behalf of CHANNEL PARTNERS to any third party by contract or otherwise. Any re-sale of Products under this clause
9.4 must be at arms length, on market terms, and in the ordinary course of Partner's business. 4
9.5 Where Partner re-sells the Products under clause 9.4, then, with respect to the proceeds of the Products re-sold ("the Proceeds"), Partner will hold on trust for CHANNEL PARTNERS: (a) the Proceeds, up to an amount equal to the amount owed to CHANNEL PARTNERS in respect of those Products ("the Unpaid Purchase Price"); and (b) where the Proceeds are less than the Unpaid Purchase Price, such part of the debt or other property received by Partner as a result of the re-sale that equals in value the Unpaid Purchase Price minus the Proceeds. The receipt on trust of the Proceeds, debt and other property in respect of Products re-sold under clause 9.4 discharges, by an amount equal in dollar terms to that received on trust, Partner's debt to CHANNEL PARTNERS in respect of those Products.
9.6 Partner will maintain records to ensure that trust money and trust property are clearly identifiable as being held on trust for CHANNEL PARTNERS. Moneys held on trust for CHANNEL PARTNERS will be kept separate until they are paid to CHANNEL PARTNERS.
9.7 In the event that: (a) Partner fails to pay the Purchase Price for Products in full by the due date as determined under clause 7.1; (b) an Insolvency Event occurs in respect of Partner; (c) Partner parts with possession of the Products held under clause 9.3 otherwise than by way of sale in the ordinary course of the Partner's business; or (d) Partner breaches any of the other provisions of these Terms and Conditions, CHANNEL PARTNERS shall have the immediate right to: (e) demand that Partner immediately account to CHANNEL PARTNERS for any money or property (including, but not restricted to, any Products and any debt) held on trust for CHANNEL PARTNERS; (f) demand that Partner immediately account to CHANNEL PARTNERS for any money owed to CHANNEL PARTNERS as a result of a breach of this Agreement; (g) re-take possession of the Products held by Partner under clause 9.3 without notice to Partner and, for that purpose, CHANNEL PARTNERS or its employees or agents may enter upon any premises occupied by Partner or any other place where such Products are stored free from trespass, and Partner will procure the consent of all persons having an interest in the premises where the Products are being situated to entry into the premises by CHANNEL PARTNERS, its employees or agents; (h) sell Products held by Partner under clause 9.3 or not yet Delivered and apply the proceeds after defraying expenses of sale and enforcement in or towards reduction of amounts due and payable on any of Partner's account whatsoever to CHANNEL PARTNERS; and (i) be indemnified by Partner from and against (and Partner must pay on demand to the CHANNEL PARTNERS) all loss, damage, costs or expenses which CHANNEL PARTNERS may suffer or incur in exercising its rights under this clause 9.7.
9.8 Partner must allow representatives of CHANNEL PARTNERS, free from trespass, to enter any premises where Products held under clause 9.3 are stored and inspect such Products at any time.
9.9 If an Insolvency Event occurs in relation to Partner, Partner or any Insolvency Practitioner must immediately conduct a stocktake of all property (including trust property) belonging to CHANNEL PARTNERS in Partner's custody and provide CHANNEL PARTNERS with access to the results of that stocktake.
9.10 Partner irrevocably appoints CHANNEL PARTNERS as its true and lawful attorney to recover any proceeds of Products re-sold under clause 9.4 to any person and to exercise Partner's rights against such person, including, without limitation, the right to re-take possession of those Products. 5
9.11 CHANNEL PARTNERS' rights under this clause 9 in no way limit any other of its rights against Partner.
10.1 Certain Products sold by CHANNEL PARTNERS and other related technology and documentation are subject to export control laws, regulations and orders of the United States and the export and/or import control laws and regulations of other countries including Australia. Partner agrees it is responsible to obtain any license to export, re-export, or import as may be required.
10.2 CHANNEL PARTNERS does not take responsibility for the Products containing a non-Australian power cord, but will include an Australia standards power cord where possible.
11.2 The terms: (a) "Personal Information", "Sensitive Information" and "Commissioner" has the meaning given to it in the Privacy Act; (b) "Consent" means a user's consent to Partner: (i) collecting, using or disclosing Personal Information about them; (ii) providing their Personal Information to third parties including CHANNEL PARTNERS; and (iii) transferring their Personal Information outside Australia for the purposes of processing it.
12. Errors and Omissions
12.1 At Channel Partners, we work hard to offer you the most competitive pricing and accurate product information. Because of the dynamic nature of this industry (e.g. vendor price changes and other variables beyond our control), prices, promotions, versions and availability advertised are subject to change without prior notice. Please be assured of our every effort to ensure the accuracy; however the documents and graphics published may contain technical inaccuracies or typographical errors.
12.2 Channel Partners makes no representations about the suitability of this information; it is provided "as is" without warranty of any kind.
12.3 If an error is made or a product is listed at an incorrect price, Channel Partners shall maintain the right to refuse or cancel any orders placed. 12.4 If the order has been confirmed and charged to your credit card, Channel Partners shall immediately issue a refund.
13.1 Partner may not assign its rights contained in any agreement between CHANNEL PARTNERS and Partner to supply and purchase Products without the prior written consent of CHANNEL PARTNERS but any such agreement is assignable in whole or in part by CHANNEL PARTNERS in its absolute discretion.
13.2 Notices or other communications to be given under these Terms and Conditions will be deemed to have been given if they are in writing and signed by, or on behalf of, any of the respective parties and served upon the other party by being delivered by hand or sent by ordinary post or by being transmitted by facsimile. Any such notice or communication will be deemed to have been received at the time at which it is left at the recipient's address or at the expiration of 48 hours from the time of posting or upon receipt by the sender of the facsimile transmission report.
13.3 A reference to a party in these Terms and Conditions includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns.
13.4 These Terms and Conditions will be governed by the laws of Victoria and Partner and CHANNEL PARTNERS agree to submit to the jurisdiction of the Victorian Courts.
13.5 Partner agrees and acknowledges that it has read and fully understood these Terms and Conditions and agrees to be bound by them.
For the purpose of these Terms and Conditions:, (a) the term "Delivered" means the Products have been either delivered to Partner or removed from CHANNEL PARTNERS' premises by Partner. The receipt by CHANNEL PARTNERS of a delivery acknowledgement signed by Partner is sufficient evidence of delivery; and (b) the term "Insolvency Event" means any of the following events: (i) a person becomes insolvent (or insolvent under administration) as defined in the Corporations Act 2001 (Cth), states that it is insolvent or is presumed insolvent under an applicable law; (ii) a person is wound up, dissolved or declared bankrupt or commits an act of bankruptcy; (iii) a liquidator, provisional liquidator, administrator, receiver, receiver and manager, encumbrancer, trustee for creditors, trustee in bankruptcy or other similar person ("Insolvency Practitioner") is appointed to, or takes possession or control of, any or all of a person's assets or undertakings ("Insolvency Commencement"); (iv) an application or order is made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), a meeting is called, resolution passed, proposal put forward, or any other action taken which is preparatory to or could result in an Insolvency Event; or (v) a person is taken, under Section 459F(1) of the Corporations Act 2001 (Cth), to have failed to comply with a statutory demand, unless the event occurs as part of a solvent reconstruction, amalgamation, merger or consolidation that has been approved in writing by CHANNEL PARTNERS.
15 Changes to Terms and Conditions
15.1 Channel Partners may add to, delete or otherwise change these terms and conditions without notice. It is the responsibility of the customer to read and understand these terms and conditions each time an order is placed.