Terms of Trade

Global Information Security Group Pty Ltd trading as Swarm Logic – Terms & Conditions of Trade

1. Definitions

1.1 “Seller” shall mean Global Information Security Group Pty Ltd and its successors and assigns.
1.2 “Buyer” shall mean the buyer or any person or Seller acting on behalf of and with the authority of the buyer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer if a Limited Liability Buyer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.

2. Acceptance

2.1 Any instructions received by the Seller from the Buyer for the supply of Goods shall constitute acceptance of the terms and conditions contained herein. Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.2 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.

3. Goods

3.1 The Goods shall be as described on the invoices, quotation, work authorisation, sales order or any other work commencement forms as provided by the Seller to the Buyer.
3.2 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(i) such discrepancy in quantity shall not exceed 10%.
(ii) the Price shall be adjusted pro rata to the discrepancy.
3.3 In the case of second hand Goods the Buyer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

4. Price And Payment

4.1 At the Sellers sole discretion;
(a) The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
(b) The price of the Goods shall be the seller’s quoted price which shall be binding upon the seller provided that the buyer shall accept in writing the Seller’s quotation within thirty (30) days. If a quotation is given at a discounted rate for early payment, and early payment is not received then the Seller shall vary the quotation to take into account the late payment.
4.2 At the Sellers sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods / Services and shall become immediately due and payable.
4.3 Time for payment for the Goods/Services shall be of the essence will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods / Service. Late payments may incur an increase in the hourly rate charged by the Seller.
4.4 At the Sellers sole discretion payment for the Goods/Services shall be on the date of the agreement.
4.5 The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event payment shall be made before the delivery date.
4.6 At the Sellers sole discretion discounts on the Price of Goods and Services may be offered to Buyers who have paid before delivery or on the date of delivery.
4.7 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by any other method as agreed to between the Buyer and the Seller.
4.8 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.

5. Delivery Of Goods

5.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods/Services shall be made to the Buyer at the Sellers address.
5.2 The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.3 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.4 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.

6. Risk

6.1 If the Seller retains property in the Goods nonetheless all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries. The Seller will apply the insurance proceeds as follows:
(i) first, in payment of the Price of the Goods that are damaged or destroyed, if unpaid;
(ii) second, in payment of the outstanding Price of any other Goods supplied to the Buyer by the Seller whether under the terms and conditions or otherwise;
(iii) third, in payment of any other sums payable to the Seller by the Buyer on any account;
(iv) fourth, any balance is to be paid to the Buyer.

7. Defects

7.1 The Buyer shall inspect the Goods on delivery and shall within fourteen (14) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

8. Return of Goods

8.1 Except as provided in this clause, the Buyer is not entitled to return the Goods to the Seller for any reason. For defective Goods which the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods, or refunding the Price provided that:
(a) the Buyer must notify the Seller within fourteen (14) days of delivery that the Goods are defective;
(b) the Seller is given a reasonable opportunity to investigate the Buyer’s claim;
(c) the Seller will not be liable for Goods which have not been stored in a proper manner.

9. Warranty

9.1 The warranty for all Software/Hardware shall be unless otherwise specified for a period of 12 months from the installation date. The Warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty. Any workmanship provided by the Seller shall be covered by a 12 month warranty.
9.2 At the Sellers sole discretion a 100% money back guarantee shall be given in respect of the Sellers workmanship provided that:
(a) the Seller is notified of the defective workmanship with in 24 hours of installation, delivery or completion of work.
(b) The Seller is afforded an opportunity to repair the defective workmanship.
9.3 The warranty shall become invalid if the Goods have not been installed in accordance with the Sellers directions /instructions.

10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

10.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

11. Buyers Disclaimer

11.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.

12. Default & Consequences Of Default

12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 5% per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all of the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services the following shall apply:
An immediate amount equivalent to 10% of the amount overdue levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then
(i) the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.

13. Title

13.1 It is the intention of the seller and agreed by the Buyer that property in the goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods; and
(b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
13.2 It is further agreed that:
(a) The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(b) Until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(c) If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(d) The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
(e) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
(f) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.

14. Security And Charge

14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14 (a) and (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Seller and/or nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

15. Cancellation

15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

16. Privacy Act 1988

16.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
16.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Buyer;
(b) To notify other credit providers of a default by the Buyer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
(d) To assess the credit worthiness of Buyer and/or Guarantor/s.
16.2 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.3 The Buyer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
(a) provision of Goods & Services;
(b) marketing of Goods and or Services by the Seller, its agents or distributors in relation to the Goods and Services;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to the provision of Goods or Services;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Goods and Services.
16.4 The Seller may give, information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.

17. Unpaid Sellers rights to dispose of Goods

17.1 In the event that:
(a) the Seller retains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Buyer for payment of the Price in terms of this agreement; and
(d) the Seller has not received the Price of the Goods, then, whether the property in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.

18. Intellectual property

18.1 Where the Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion.
18.2 Conversely, in such a situation, where the Buyer has supplied drawings, the Seller may look for an indemnity for the specifications and designs of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller. Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
18.3 The Buyer warrants that all designs or instructions to the supplier will not cause the supplier to infringe any patent, registered design or trademark in the execution of the Buyers order.

19. Data Loss

19.1 The Seller shall not be liable for any data loss or reduction in productivity of the Buyer due to any actions, tests or processes performed by the Seller.
19.2 The Seller shall be under no liability whatsoever to the Buyer for any indirect loss and/or expense (including loss of profit (consequential loss)) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
19.3 The Buyer shall also be responsible for the supply, testing and making available backups of the Buyers data prior to any Services being carried out by the Seller.

20. General

20.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 All Goods supplied by the Seller are subject to the laws of New South Wales and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
20.3 The Buyer shall not set off against the Price amounts due from the Seller.
20.4 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
20.5 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Buyer of such change.
20.6 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.

21. Restraint
The buyer will not during the twelve months after undertaking business with us:
21.1 attempt in any manner to persuade any of our employees or contractors to cease providing services to us and/or to provide services to you or another person;

You acknowledge and agree that, without prejudice to any other remedy that we may have, we will be entitled to injunctive and other equitable relief to prevent or cure any breach or threatened breach of this clause.