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Payment:
Payment shall be made by bank transfer to the nominated account on the invoice or bank cheque and within the credit
period stipulated in each quotation/proposal, invoice or statement. If
no credit period is stipulated, payment shall be made within 7 days
from the date of invoice.
Interest:
Interest shall be charged on overdue accounts at the current Penalty Interest Rates Act 1983 (Vic.) interest rate plus 2%.
Consumer Guarantees & ACL:
The Australian Consumer Law in
Schedule 2 of the Competition and Consumer Act 2010 (Cth) [“ACL”]
provides consumers with certain consumer guarantees and rights in
relation to certain transactions concerning products and/or services
(see www.consumerlaw.gov.au). Any rights the Customer may have under the ACL shall apply notwithstanding any inconsistent provisions
in these Terms which shall be read down to the extent necessary to
comply with the ACL and which shall otherwise apply to the fullest
extent legally permissible.
Limitation of Liability:
To the extent permitted by the ACL:
a) The Customer agrees to limit any claim to the replacement/repair of the products (or cost thereof) and/or re-supply of services (or cost thereof); and
b) Avant Tech shall not be liable for any consequential loss and/or any special and/or punitive damages through any fault and/or negligence of Avant Tech or at all.
Cancellations:
The Customer agrees:
a) Not to cancel any order without Avant Tech’s prior approval;
b) That Avant Tech may invoice the Customer for the full amount in any quotation/proposal in the eventof any cancellation by the Customer and the Customer shall be liableto pay the invoice/s in full; and
c) To indemnify Avant Tech against any and all loss suffered as a result of any cancellation.
Quotations and Orders:
The Customer agrees that:
a) Quotations/proposals must be in writing;
b) Avant Tech shall not be bound by any quotation/proposal if an order is not placed within 14 days from the date of quotation/proposal;
c) Avant Tech may prior to receipt of any order amend any quotation/proposal and notify the Customer accordingly without ramification;
d) Any written or verbal request by or on behalf of the Customer to proceed with work shall be an acceptance of the quotation/proposal of Avant Tech;
e) Any work requested by the Customer which is outside the scope of works in any quotation/proposal shall be charged to the Customer at Avant
Tech’s usual rate for such work.
Supply and Delivery:
a) Avant Tech may supply by instalments and/or withhold or cancel supply where the Customer is in breach of these Terms.
b) Avant Tech will attempt to meet any delivery timelines contained in any quotation/proposal but shall not be liable for delay, failure or inability to deliver any products or services within the times specified.
c) The Customer agrees that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
Purchase Price:
a) In the absence of a binding quotation or proposal all sales are made at the price nominated by Avant Tech at the time of delivery.
b) All government imposts, levies and duties (including any GST or equivalent) shall be to the Customer’s account.
c) Prices exclude all government imposts, levies and duties (including any GST or equivalent).
d) Prices may vary by up to 15% of the amount in any quotation/proposal due to more or less time being spent on the project and this increase or decrease will be invoiced to the Customer.
Variations:
To be binding any variation or cancellation of these Terms, and quotation/proposal or any order must be approved by Avant Tech in writing.
Exclusions:
To the extent permitted by the ACL:
a) no dealing between Avant Tech and the Customer shall be or be deemed to be a sale by sample;
b) the Customer shall rely on its own knowledge and expertise in selecting any products and/or services for any purpose and any advice and/or assistance given by or for Avant Tech shall be at the Customer’s risk and shall not be or be deemed to be given as expert or adviser nor to have been relied on by the Customer or anyone claiming through the Customer;
c) Avant Tech shall not be responsible nor liable for paying and/or obtaining any necessary statutory, government and/or utility fees, expenses, orders, approvals,
permits and/or licences;
d) Avant Tech shall not be liable for products and/or services made or performed to designs, specifications and/or procedures etc. which are provided and/or approved (whether fully or in part) by or on behalf of the Customer;
e) the Customer agrees to:
(I) check all products and/or services for compliance with all applicable laws, standards and/or guidelines before use, on-sale and/or application;
(ii) comply with all applicable laws, standards and/or guidelines and with all recommendations and/or directions made and/or given by Avant Tech; and
(iii) act in good faith and in accordance with good practice at all times;
f) Avant Tech shall have no liability for any matter arising from any changes to APIs (application programming interfaces) or other software provided by third parties;
g) Avant Tech gives no warranty as to approval of its applications by iTunes, Google Play or any other app store.
Default:
a) On default or breach of any part of these Terms by the Customer the full balance of all unpaid monies shall be deemed by this clause to be immediately due and payable (save to the extent that Avant Tech expressly directs otherwise in writing) and Avant Tech may inter alia terminate any contract, cancel any rebates, discounts or allowances, retain all monies paid, cease further work and/or provision of services, invoice for the balance of any quotation/proposal and/or recover all lost profits without prejudice to any other rights and without being liable in any way to any party.
b) The Customer agrees to indemnify Avant Tech for all fees and expenses payable to lawyers, mercantile agents and/or other parties acting on behalf of Avant Tech
in respect of anything instituted or being considered against the Customer whether for debt, possession of any goods or otherwise (including all legal costs on an indemnity basis).
c) Avant Tech may apply any payment in reduction of fees, interest and/or any principal debt in such order of priority as Avant Tech in its discretion deems appropriate.
Indemnity:
The Customer fully indemnifies Avant Tech against any claim and/or loss arising from or related in any way to any dealing between Avant Tech and the Customer and/or arising under these Terms.
Intellectual Property:
The Customer agrees that all intellectual property in the creation of any products and/or services shall be and remain the exclusive property of Avant Tech unless agreed otherwise.
Other Terms and Conditions:
No terms and conditions sought to be imposed by the Customer upon Avant Tech shall apply.
Jurisdiction:
The Customer agrees that these Terms and any claim or dispute between Avant Tech and the Customer shall be governed by the law applicable in the State nominated by Avant Tech and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by Avant Tech in the capital city of that State. If no State is nominated then Victoria shall be deemed to be the nominated State.
Waiver:
An election by Avant Tech not to exercise any rights on any breach of these Terms shall not constitute a waiver of any rights relating to any other breach.
Variations:
The Customer:
a) Acknowledges that Avant Tech may vary or replace these Terms affecting all future dealings between the Customer and Avant Tech;
b) Shall be deemed to have notice of any variation to or replacement of these Terms immediately upon Avant Tech notifying the Customer at the Customer’s last known address; and
c) Shall be deemed to have accepted these Terms as varied or replaced immediately upon placing any further order with Avant Tech
Force Majeure:
Avant Tech shall not be in default or in breach of any contract with the Customer as a result of Force Majeure including any strike or lock-out
Insolvency:
The Customer shall be in default of these Terms if the Customer commits an act of insolvency, appoints an insolvency practitioner or has one appointed and/or calls a formal meeting of creditors
Severability:
Any part of these Terms shall be capable of severance without affecting any other part of these Terms