Published Date : 22nd February 2017
Tripleplay Services Australia Pty Limited (ABN 90 134 939 754)
TERMS AND CONDITIONS OF SUPPLY
In these Terms and Conditions, the following phrases and expressions have the following meanings:
“Confidential Information” means all secret or confidential commercial, financial and technical information, know how, trade secrets, inventions, product design, computer software and other information whatsoever and in whatever form or medium and whether disclosed orally or in writing, together with all reproductions in whatsoever form or medium and any part or parts of it;
“Contract” means the contract made between Tripleplay and the Customer for the supply of the Goods and/or Services which is subject to these Terms and Conditions following acceptance by Tripleplay of an Order;
“Computer Software” means the computer software and diagnostics (in object code form only) produced, owned and developed by Tripleplay and any operating system, in each case as is installed on the Goods by Tripleplay prior to delivery to the Customer, as set out on the relevant Order (which shall not include any right to receive update or modifications), pursuant to the Software Licence;
“Customer” means the party with whom Tripleplay contracts (and if the Customer has entered into a Reseller Agreement with Tripleplay the Reseller shall be the Customer pursuant to these Terms and Conditions);
“Goods” means all or any of the Hardware, Computer Software (use of which shall be licensed subject to the Software Licence), Third Party Software (use of which shall be licensed subject to the Software Licence), documentation or other materials to be supplied by Tripleplay to the Customer in accordance with these Terms and Conditions and as specified on each Order, but excluding any Services;
“GST” means any goods and services tax, value added tax or sales tax imposed on the sale or supply of goods, services and rights in any jurisdiction, including but not limited to a tax imposed by the GST Law;
“GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth of Australia;
“Hardware” means the computer hardware, set top boxes and remote controls to be provided by Tripleplay to the Customer pursuant to these Terms and Conditions;
“Insolvency Event” means any one or more of:
• a notice being issued to propose a resolution for winding up or dissolution, or such a resolution being passed in respect of a party;
• a petition for winding up or an administration or bankruptcy order being presented, or such an order being made in respect of a party;
• any steps being taken in respect of a party with a view to a voluntary arrangement or other assignment, composition or arrangement with all or any creditors or any moratorium, readjustment, rescheduling, forgiveness or deferral of all or any indebtedness;
• suspension of payments to all or any creditors and/or ceasing business by a party;
• an encumbrancer taking possession of all or any assets of a party;
• an administrator or receiver being appointed over a party or all or any of its assets;
• any action anywhere in the world similar or analogous to any of the foregoing;
• the other party having reasonable grounds for believing that any of the foregoing is imminent;
For the avoidance of doubt, where a party is a firm or partnership, if any of the foregoing occurs in relation to a partner in that party it will be deemed to occur in relation to that party;
“Intellectual Property” means all intellectual property rights of any kind existing anywhere in the world whether or not registered and all applications, renewals and extensions of the same including, without limitation, all patents, trade marks, designs, design rights and copyrights, database rights, rights in Computer Software, know how, Confidential Information;
“Order” means the Customer’s Purchase Order (or other order or request) incorporating or referring to any applicable Quotation, and which shall set out the specification of all Goods to be supplied, and the details of any Services, (including the Site and Support Package required), Computer Software, and Third Party Software which Tripleplay is to install or provide to the Customer pursuant to that Order (subject to the terms of the Support Services Agreement, Software Licence and Third Party Licences as applicable);
“Returns Number” means the reference number which must be obtained from Tripleplay before any Goods are returned and which must then accompany such returned Goods, in accordance with Condition 6.1.2;
“Services” means any services, including support services, as requested by Customer or as provided by Tripleplay to the Customer from time to time, subject to the terms of the Support Services Agreement for the Support Package referred to in the relevant Order, and such other terms as Tripleplay may specify as apply to any other services;
“Software Licence“ means the form of end user licence for the use of the Computer Software to be entered into between Tripleplay and Customers in respect of their use of the Software the current version of which is available at https://www.tripleplay.tv/au-software-license-agreement/
“Support Package” means the relevant package of support Services referred to in the Order, as defined in the Support Services Agreement;
“Support Services Agreement” means the support terms and conditions pursuant to which Tripleplay agrees to provide the Support Package referred to in the relevant Order, the current version of which is available at https://www.tripleplay.tv/au-support-services-agreement/
“Third Party Software” means any computer software and diagnostics (including any operating system, firmware or code and including any enhancements, modifications and updates thereto), which is not owned by Tripleplay, in object code form only which is referred to on the Order and which is either (a) installed on the Hardware by Tripleplay prior to delivery, or (b) which is supplied by Tripleplay to Customer at the same time as the delivery of the Hardware is made pursuant to clause 4 and including any Open Source Software or Third Party Software listed or referred to in the Software Licence;
“Third Party Licences” means the licence terms and conditions as apply to each of the Third-Party Software as referred to in any Order or in the Software Licence;
“Tripleplay” means Tripleplay Services Australia Pty Limited (ABN 90 134 939 754) of PO Box 801
North Sydney, NSW 2059, Australia;
“We”, “Us” or “Our” means Tripleplay;
“Working Day” means 09.00am to 05.30pm on any day (other than a Saturday, Sunday or public holiday) on which banks are open for normal banking business in Sydney, New South Wales, Australia.
2. Basis of contract
2.1 Any quotation issued by Tripleplay will remain open for a maximum period of 30 days from its date for a Customer to make an offer to Tripleplay as set out in these Terms and Conditions. Quotations are not binding and do not constitute an offer by Tripleplay capable of acceptance by the Customer.
2.2 These Terms and Conditions will form the terms and conditions of the Contract and will prevail to the exclusion of any terms or conditions whether put forward by or on behalf of the Customer in or on its order or otherwise, except only in respect of any other terms specifically agreed by Tripleplay and the Customer in writing in advance.
2.3 In the event the Customer has entered into a Reseller Agreement with Tripleplay, the Order and any resulting Contract shall be made pursuant to the terms of that Reseller Agreement, which shall prevail in the event of any conflict with these Terms and Conditions.
2.4 The placing by the Customer of any Order will constitute an offer by the Customer to Tripleplay for the sale of the Goods subject to these Terms and Conditions, the provision of the Third-Party Software subject to the Third-Party Licences, and the provision of the Computer Software subject to the Software Licence, and a separate order for the provision of Services pursuant to the Support Services Agreement in respect of each Site. The Customer shall ensure that its Order is complete and accurate (including, where the Customer is a Reseller, specifying in reasonable detail any special requirements of its end user). No Contract will come into existence unless and until Tripleplay accepts the Customer’s Order in writing (including by way of email acceptance or such other method as Tripleplay may from time to time determine). Any Order placed by the Customer with any of Tripleplay’s salesmen or other employees or representatives will be subject to acceptance by Tripleplay in writing (which shall include email).
2.5 No alteration to these Terms and Conditions, any Quotation, Order or Contract will be effective unless expressly agreed to in writing by a Director of Tripleplay (which shall include email).
2.6 The provision of Goods to the Customer, is subject to their acceptance of these Terms and Conditions, in relation to the supply of Support Package is subject to the Support Services Agreement, in relation to Third Party Computer Software is subject to the Third-Party Licences, and in relation to Computer Software is subject to the Licence Agreement, each of which are deemed to be accepted by written or electronic acknowledgement from the Customer to proceed with the Order. The provision of any other services (including professional services, training, commissioning, user interface customisation) shall be subject to such other terms and conditions of Tripleplay as it may specify in the relevant Order.
3. Orders and Specifications
3.1 The Customer will be responsible to Tripleplay for ensuring that all its requirements (including, in the case of a Reseller, of any end user) are accurately and adequately set out in the Order. Any variations to Goods and/or Services requested by the Customer shall be subject to acceptance by Tripleplay.
3.2 Where samples are to be supplied by Tripleplay, the Customer will as soon as reasonably practicable (and in any case, no later than ten (10) days) after receipt of the same notify Tripleplay if the samples are not satisfactory. In default of such notification Tripleplay will be entitled but not bound to proceed in the performance of the remainder of the Contract.
3.3 Tripleplay reserves the right to make any changes to the specification of the Goods or performance of the Services which are required to conform with an applicable safety or other statutory requirement or which do not materially affect the quality or performance of the Goods and/or the Services.
4.1 Any time quoted by Tripleplay for delivery of all or any of the Goods and/or performance of all or any of the Services is an estimate only and time will not be of the essence. Tripleplay will not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature resulting directly or indirectly therefrom.
4.2 Tripleplay reserves the right to deliver all or any of the Goods and/or the Services in advance of the estimated date.
4.3 In the absence of an agreement for charging delivery for the Goods to the Customer, they will be responsible for collecting the Goods from Tripleplay’s premises as soon as practicable following notification from Tripleplay that the Goods are ready for collection or, if some other place for delivery is agreed by Tripleplay, by Tripleplay delivering the Goods to that place.
4.4 Tripleplay reserves the right to deliver by instalments and each delivery will constitute a separate contract to which these Conditions will apply. Failure by Tripleplay to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments will not entitle the Customer to treat the Contract as a whole as repudiated.
4.5 If the Customer fails to take delivery of or collect the Goods or fails to give Tripleplay adequate delivery instructions after notification by Tripleplay that the Goods are ready Tripleplay may (without prejudice to its other rights and remedies):
4.5.1 store the Goods (on its own or any third party’s premises) and, if such storage continues in excess of 10 Working Days, charge the Customer for its reasonable costs (including without limitation GST and costs of storage, carriage and insurance); and/or
4.5.2 sell the Goods at any time and after deducting all costs and expenses account to the Customer for any excess over the price already paid under the Contract or charge the Customer for any shortfall between the Contract price and such costs and expenses.
4.6 Notification of short delivery (measured by weight or number) or damage in transit must be made in writing to Tripleplay within 5 days of the receipt of the Goods.
4.7 Notification of non-delivery must be made in writing to Tripleplay within 7 days after the date of Tripleplay’s applicable invoice.
4.8 Tripleplay will at its option either make good the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid) or by repair or replacement any such non-delivery short delivery or damage notified in accordance with Condition 4.6 and/or Conditions 4.7. In no event, will Tripleplay be liable to the Customer in connection with any damage or loss in transit where delivery takes place at Tripleplay’s premises.
4.9 All returnable containers and packing materials will be charged for, but credit will be given if these are returned in a condition satisfactory to Tripleplay.
4.10 Where any Order includes Computer Software or Third Party Software, the Customer shall, by placing the Order, have accepted the terms of the Software Licence and Third Party Licences as a precondition to the Customer’s use of those items. Any use by the Customer of Computer Software or Third Party Software shall be subject to the terms of the Software Licence and Third Party Licences and shall only permit use as part of and in conjunction with the Goods purchased by the Customer for the lawful and intended internal business purpose of the Customer (which shall not exceed the use for which such Goods are normally used), and unless specified otherwise on the relevant Order in respect of one instance only of the Computer Software and Third Party Software.
All descriptive and technical specifications, drawings, catalogues, illustrations and particulars of weight and dimensions supplied by Tripleplay are approximations only and Tripleplay reserves the right without notice to the Customer to make alterations thereto and to supply the Goods so altered in performance of the Contract provided that such alterations do not materially affect their quality or performance. Where the Customer has indicated to Tripleplay that it is purchasing certain Goods in reliance on the unaltered technical specifications, drawings, catalogues, illustrations and particulars of weight and dimensions Tripleplay will first obtain the Customer’s consent before supplying the altered materials or Goods.
6.1 Following acceptance by Tripleplay of the Customer’s order, no cancellation and/or suspension, either in whole or in part, may be made by the Customer other than with the prior written consent of a Director of Tripleplay, at its discretion, and upon terms that:
6.1.1 the Customer will indemnify Tripleplay in full against all loss (including without limitation loss of profit) damages, costs expenses and other liabilities awarded against or incurred by Tripleplay as a result of or in connection with the cancellation;
6.1.2 the Goods returned are accompanied by reference to a Returns Number, are in the exact condition as at the time of delivery by Tripleplay and are appropriately packaged for such return;
6.1.3 the Customer will be responsible for the cost of carriage and insurance in respect of such returned Goods and such Goods will remain at the Customer’s risk until actual receipt by Tripleplay;
6.1.4 the Customer will pay a 20% of the price of the Goods as set out on the applicable Order as a restocking fee for all Goods returned to Tripleplay as part of a cancellation.
7.1 Subject to prior written agreement to the contrary, Tripleplay will be entitled to invoice the Customer for the price of the Goods and Services as set out on the applicable Order on or at any time after Tripleplay has notified the Customer in the case of Goods that they are ready for collection or Tripleplay has tendered delivery of the same and in the case of Services that the provision of the Services has started or that they are ready to be delivered.
7.2 Any price quoted by Tripleplay is based upon costs current as at the date of quotation and may be changed by Tripleplay at any time prior to notification to the Customer that the Order has been accepted. Where no price has been specified on the applicable Order in respect of any of the Goods or Services, Tripleplay’s standard pricing shall apply.
7.3 Following acceptance of an Order, the price charged to the Customer under the Contract in respect of Goods which have not been delivered may be increased to reflect any increase in the cost to the Supplier which is due to market conditions or any factor beyond the control of Tripleplay (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Tripleplay adequate information or instructions. In the event that such a price increase is greater than 10% of the original price Tripleplay must first obtain the Customer’s consent to the price increase before supplying the Goods to the Customer. If the Customer does not so consent to the price increase, Tripleplay will be released from any obligation to supply the relevant Goods.
7.4 Payment must be made in Australian dollars unless otherwise agreed in writing prior to the order being placed on Tripleplay and made by way of bank cheque, or electronic funds transfer to Tripleplay’s bank account as notified in writing from time to time by Tripleplay, or as otherwise agreed with Tripleplay. Unless otherwise expressly stated, all references in these Terms and Conditions to AUD or dollars or “$” are references to Australian dollars.
7.5 All prices, charges and expenses referred to in these Terms and Conditions are exclusive of GST, which will be levied and paid by the Customer as described in the Contract in accordance with the GST Law.
7.6 The Customer will make payment in full within 30 days following the date of Tripleplay’s invoice notwithstanding that the delivery may not have taken place and the property in the Goods may not have passed to the Customer.
7.7 If the Customer fails to pay the price for any Goods or Services within 30 days following the date of the invoice, Tripleplay will be entitled (without prejudice to any other right or remedy it may have) to:
7.7.1 cancel or suspend any further delivery to the Customer of Goods under the Contract or pursuant to any other order, or the further provision of any Services;
7.7.2 sell or otherwise dispose of any Goods or Services which are the subject of any order by the Customer, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment;
7.7.3 charge interest on the overdue amount at the rate of 4% per annum above the Reserve Bank of Australia official cash rate in force from time to time, from the date payment becomes due until actual payment is made (irrespective of whether payment is made before or after any judgment or award in respect of the same); and
7.7.4 inform the Customer that due to non-payment or a delay in payment, Tripleplay will revoke the Software Licence relating to the non-payment granted by it for any Computer Software and any Third Party Licences relating to Third Party Software, immediately on a written notice being issued by Tripleplay.
7.8 The Customer will not be entitled to set-off any alleged amount owed to it by Tripleplay against any amount it owes under these Terms and Conditions or otherwise, or withhold payment thereof for any reason.
7.9 Where payment is agreed to be made by instalments, any delay or default by the Customer in making payment in respect of any one instalment will render all the remaining instalments due forthwith, and interest will be charged in accordance with Condition 7.7.3 with immediate effect until the date of actual payment and Tripleplay will reserve the right to disable the licence of the Goods subject to Condition 7.7.4.
7.10 Tripleplay may appropriate any payment made by the Customer to such of the Goods or Services (or the goods or services supplied under any other contract between Tripleplay and the Customer) as Tripleplay may think fit (notwithstanding any purported appropriation by the Customer).
8. Risk and title
8.1 Risk in the Goods will pass to the Customer immediately upon delivery to the Customer or into custody on the Customer’s behalf whichever is the sooner.
8.2 Notwithstanding delivery and the passing of risk, property in and title to the Goods will remain with Tripleplay until Tripleplay has received payment in full of the price of all Goods and/or Services the subject of the Contract.
8.3 Until property in and title to the Goods passes to the Customer:
8.3.1 the Customer will keep the Goods properly stored, protected and insured and separate from all or any other goods whether belonging to Tripleplay the Customer or any third party;
8.3.2 Tripleplay will be entitled at any time forthwith to revoke the Customer’s power to deal with the Goods, and any Software Licence or Third Party Licence entered into for the purposes of using such Goods and it will automatically cease if an Insolvency Event occurs in respect of the Customer, or if the Contract or any Order is terminated by Tripleplay pursuant to clause 9 for any reason; and
8.3.3 the Customer will not make any modification to the Goods or their packaging or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods.
8.4 Upon termination of the Customer’s power to deal with the Goods, the Customer will place the Goods at the disposal of Tripleplay and Tripleplay and its servants and agents are hereby irrevocably authorised without the need for consent of any third party but using only such force as may be necessary, to enter upon any premises of the Customer or any third party for the purpose of removing the Goods.
8.5 If any of the foregoing provisions of this Condition are held to be invalid or unenforceable such invalidity or unenforceability will not affect the remaining provisions.
9. Security Interest
9.1 The retention of title arrangement described in clause 5 constitutes the grant of a purchase money security interest by the Customer in favour of the Supplier in respect of all present and after-acquired Goods supplied to the Customer by the Supplier.
9.2 The Customer must immediately, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Supplier’s purchase money security interest is a perfected security interest.
9.3 The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until the Supplier has perfected its purchase money security interest.
9.4 For any Goods supplied that are not goods that are used predominately for personal, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 130, 132(4),135, 142 or 143 of the PPSA in relation to the Goods.
9.5 The Customer hereby waives any rights the Customer may otherwise have to:
9.5.1 receive any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130, 132 or 135
9.5.2 apply to a Court for an order concerning the removal of an accession under section 97
9.5.3 object to a proposal of the Customer to purchase or retain any collateral under ss 130 and 135
9.5.4 receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest the Supplier may have in Goods supplied to the Customer from time to time.
9.6 For the purposes of this clause “PPSA” means the Personal Property Securities Act 2009. The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA. References to sections are to sections of the PPSA.
10. Termination and suspension
10.1 Without prejudice to any rights and remedies available to it, Tripleplay will be entitled, forthwith on written notice to the Customer either to terminate the Contract and/or any other contract with the Customer wholly or in part or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Customer (and on the giving of such notice all monies outstanding from the Customer to Tripleplay will become immediately due and payable) if:-
10.1.1 any sum owing to Tripleplay from the Customer on any account whatsoever is unpaid after the due date for payment (in which event Tripleplay will have a general lien for any such sum on all and any property of the Customer in its possession);
10.1.2 an Insolvency Event occurs in respect of the Customer; or
10.1.3 the Customer commits any breach of any contract with Tripleplay (including without limitation the Contract, the Software Licence, the Support Services Agreement) or any Third Party Licence.
10.2 In the event of a suspension of performance Tripleplay will be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
10.3 Without prejudice to any rights and remedies available to it, the Customer will be entitled, forthwith on written notice to Tripleplay either to terminate the Contract and/or any other contract with Tripleplay wholly or in part or to withhold performance of all or any of its obligations under the Contract and/or any other contract with Tripleplay if:-
10.3.1 an Insolvency Event occurs in respect of Tripleplay; or
10.3.2 the Tripleplay commits any breach of any contract with the Customer (including without limitation the Contract, the Software Licence, the Support Services Agreement) or any Third Party Licence.
11. Warranty and Limitation of Liability
11.1 Tripleplay will make good at its option by reimbursement of the whole or such part of the price set out in the applicable Order as Tripleplay reasonably determines represents an appropriate allocation to the relevant Goods (and, where relevant, as a deduction from any part of the price remaining unpaid) or by repair or replacement of the affected Goods: –
11.1.1 subject to Condition 5, any failure by the Goods to correspond with their specification as set out on the Order, at the time of delivery;
11.1.2 any defect developing under normal use of the Goods and due solely to faulty design (except to the extent that the design or any other material information, including details included in the specification, is supplied by or on behalf of the Customer), materials and/or workmanship.
11.2 Subject to the remaining provisions of this Condition 10 and to the extent permitted by applicable laws, Tripleplay shall not be liable pursuant to the Contract or any Order in respect of:
11.2.1 any failure to meet the specification is notified in writing to Tripleplay within 14 days from the date of delivery or (where the failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure and in any event, such failure must be notified within 3 months from the date of delivery;
11.2.2 any such defect in design materials workmanship will have appeared within 3 months from the date of delivery and will have been thereupon promptly notified to Tripleplay in writing;
11.2.3 any defect in the Goods arising from any drawings, design, or any other information (including any specification included in the Order) is supplied by or on behalf of the Customer;
11.2.4 any defect arising from fair wear and tear, or other acts of the Customer including without limitation wilful damage, negligence, lack of proper maintenance or servicing, abnormal working conditions, failure to follow Tripleplay’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Tripleplay’s approval;
11.2.5 any Third-Party Software or any parts, materials or equipment not manufactured by Tripleplay in respect of which the Customer will only be entitled to such of the benefit of any warranty or guarantee to the extent as it is given by the relevant manufacturer to Tripleplay and the benefit of it can be transferred to the Customer; and
11.2.6 any warranty set out in this Contract, including Condition 12.2, until any monies due from the Customer under the Contract have been paid in full unless agreed in writing prior to delivery of the Goods; and
11.2.7 the Customer acknowledges that to the extent permitted by applicable laws Tripleplay does not warrant that the use of any Software will be uninterrupted or error-free; and
11.2.8 the Customer agrees that to the extent permitted by applicable laws any Goods alleged to be defective shall be made available by the Customer promptly to Tripleplay for inspection and, if so required by Tripleplay, are promptly returned at the Customer’s risk and expense to Tripleplay’s works for inspection.
11.3 Nothing in this Condition 10 will operate so as to exclude or limit:
11.3.1 the liability of Tripleplay in respect of death or personal injury caused by the negligence of Tripleplay its servants or agents; or
11.3.2 any liability for fraud or fraudulent misrepresentation.
11.4 Except in respect of Services (in relation to which the Support Services Agreement shall apply as a separate contract applicable to each Site) and to the extent permitted by applicable laws, Tripleplay will not be liable to the Customer in contract, tort (including without limitation negligence or misrepresentation whether innocent or negligent) and/or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by Tripleplay its servants or agents, in a sum which is greater than the Contract price for the Goods paid or payable by the Customer to Tripleplay in respect of the Goods, as set out on the relevant Order.
11.5 Subject to clause 10.3 and to the extent permitted by applicable laws, Tripleplay shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
11.5.1 loss of profits; or
11.5.2 loss of business; or
11.5.3 depletion of goodwill or similar losses; or
11.5.4 loss of anticipated savings; or
11.5.5 loss of goods; or
11.5.6 loss of use; or
11.5.7 loss or corruption of data or information; or
11.5.8 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11.6 To the extent that the Customer is a consumer, as that term is defined in the Australian Consumer Law as contained in Schedule 2 of the Competition And Consumer Act 2010 (Cth) Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
11.7 Certain legislation, including the Australian Competition and Consumer Act 2010 (Cth) may imply warranties, conditions or guarantees or impose obligations which cannot be excluded, restricted or modified except to a limited extent (Non-Excludable Guarantees). If such Non-Excludable Guarantees apply and Tripleplay fails to comply with them, the Customer may be entitled to other remedies under the applicable legislation. These Terms and Conditions must be read subject to those Non-Excludable Guarantees and remedies. To the extent permitted by applicable laws, Tripleplay’s liability to the Customer pursuant to the Non-Excludable Guarantees is limited in the following ways and the Customer agrees and acknowledges that the following limits are fair and reasonable in all the circumstances:
11.7.1 except as required of Tripleplay under the Non-Excludable Guarantees, Tripleplay provides no other warranty, guarantee or assurance, express or implied, to the Customer; and
11.7.2 To the extent permissible by law, Tripleplay’s liability for failure to comply with a Non-Excludable Guarantee is limited at Tripleplay’s option to replacement, repair or resupply of the relevant goods or the specific element in question (or equivalent goods), or resupply of the relevant services, or the payment of the cost of doing any of those things.
12. Health and safety
The Customer undertakes to comply with all instructions relating to the Goods received from Tripleplay from time to time and to take all steps sufficient to ensure, so far as is reasonably practicable, that the Goods will at all times be in a safe condition and without risks to the health and safety of any person.
13. Intellectual Property
13.1 The Customer acknowledges that all Intellectual Property in and to the Goods and/or Services are as between it and Tripleplay, the property of Tripleplay and will remain so at all times.
13.2 The Customer will promptly and fully notify Tripleplay of any actual, threatened or suspected infringement of any Intellectual Property of Tripleplay which comes to the Customer’s notice, and of any claim by any third party that the sale or use of the Goods infringes any rights of any other person. The Customer will at the request of Tripleplay do all such things as may reasonably be required to assist Tripleplay in taking or resisting any proceedings in relation to any such infringement or claim. Tripleplay undertakes at its own expense to defend the Customer or, at Tripleplay’s option, settle any claim or action brought against the Customer alleging that the possession or use by the Customer of the Computer Software (or any part thereof) in accordance with the terms of the Software Licence infringes the Intellectual Property of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim.
13.3 If the Goods are to be manufactured or any process is to be applied to the Goods by Tripleplay in accordance with a specification submitted by the Customer, the Customer will (without prejudice to the other rights and remedies of Tripleplay) indemnify Tripleplay in full against all loss, costs (including reasonable legal fees), damages, charges, expenses and other liabilities awarded against or incurred by Tripleplay as a result of or in connection with:
13.3.1 any claim for infringement of any Intellectual Property of any other person which results from Tripleplay’s use of the Customer’s specifications;
13.3.2 any other liability of any kind to any third party including without limitation for defective Goods, personal injury or death to the extent that it arises from the specification.
13.4 In relation to Computer Software or Third Party Software which is referred to on the Order as being supplied with the Goods:
13.4.1 the licence fee for the Computer Software or Third Party Software (if any) shall be set out on the Order for the Goods onto which it is installed, or with which it is delivered by Tripleplay;
13.4.2 the Customer acknowledges that it is buying only the Goods and other media on which the Computer Software or Third Party Software is recorded;
13.4.3 nothing contained in these Terms and Conditions shall be construed as an assignment of any Intellectual Property Rights in the Computer Software or Third Party Software or any documentation relating to them; and
13.4.4 the Customer shall be subject to the rights and restrictions imposed by the owner of the Intellectual Property Rights in the Computer Software or Third Party Software as applicable, and shall comply with the terms of the Software Licence and Third Party Licences relating to them.
13.5 The Customer shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than as reasonably required for the implementation of this Contract) nor without the prior written consent of Tripleplay disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to the Customer from Tripleplay or which relates to Tripleplay or any of its affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of the Customer from a third party. Customer shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
13.6 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
13.7 Notwithstanding any other provision in this agreement, and to the extent permissible by law, Tripleplay shall not be liable pursuant to clause 11.2 to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software by the Customer or through the breach of any Third-Party Licence by the Customer or any person acting on its behalf.
14. Contracts for Services
14.1 Where the Contract is for or to include Services to be performed by Tripleplay, such Services shall be subject to these terms and conditions for each Site and:
14.1.1 Tripleplay will only be obliged to carry out Services during normal Working Days and will be entitled to charge for any overtime worked upon request by the Customer.
14.1.2 where the Services are performed at the premises of the Customer, the Customer will provide free of charge: –
188.8.131.52 proper and safe storage and protection of all Goods, tools, plant, equipment and materials on site;
184.108.40.206 Internet access for email and telephony services;
220.127.116.11 free and safe access to the site and place where the Services are to be performed;
18.104.22.168 all facilities and services necessary to enable such Services to be performed safely and expeditiously;
22.214.171.124 if such Services include the installation of Goods, all builders work, foundations and cutting away and making good where necessary; and
126.96.36.199 the availability of all plant and equipment to permit the Goods to be tested upon completion of Services
188.8.131.52 any specific terms outlined in the purchased ordered associated with the Services work to be carried out.
14.2 The Customer will pay Tripleplay any expenses incurred by Tripleplay by reason of a breach by the Customer of any of its obligations in this Condition without prejudice to Tripleplay’s right to recover any loss thereby occasioned.
14.3 Goods and Services supplied on the Site of the Customer are at all times at the sole risk of the Customer and if any part is lost or destroyed for any reason whatsoever (save through the negligent act or wilful misconduct of Tripleplay) Tripleplay will be entitled to charge as a variation to the Contract for the restoration of such Goods and/or Services, unless the Customer requests that the relevant Good and/or Services not be rectified. The Customer will for the benefit of itself and Tripleplay insure and keep insured with reputable insurers the full value of Goods and Services against every kind of loss, damage or destruction. The Customer will produce such policy to Tripleplay upon request together with the latest premium receipts and in default of effecting the same Tripleplay will be entitled to do so and add the cost of such insurance to the Contract price.
15. Software licence
15.1 The price of the Goods specified on the Order includes the licence fee for the Customer’s right to use the Computer Software pursuant and subject to the Software Licence.
15.2 Tripleplay grants to the Customer and the Customer hereby accepts a non-exclusive, non-transferable, revocable, limited licence to use the Computer Software pursuant to the Software Licence and on the following conditions:
15.2.1 the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement or for normal operation of the Goods), reproduce, translate, adapt, vary or modify the software, nor communicate it to any third party, without Tripleplay’s prior written consent;
15.2.2 in the event of assignment by the Customer of the Computer Software (whether or not by way of resale or where such assignment cannot be excluded by law), the Customer ensures that the assignee accepts the terms of the Software Licence prior to making any use of the Computer Software, and any breach by the Customer of this clause shall be deemed a breach of a material term entitling Tripleplay to terminate the Contract in whole or in part and any Software Licence relating to such Goods;
15.2.3 the Customer shall not use the Computer Software on any Goods other than the Goods, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Computer Software on the medium on which it resides;
15.2.4 such licence shall be terminable by either party on 28 days’ written notice, provided that Tripleplay shall be entitled to terminate only if the continued use or possession of the Computer Software by the Customer infringes a third party’s Intellectual Property or other rights, or Tripleplay is compelled to do so by law, or if the Customer has failed to comply with any material term of the Contract or these Terms and Conditions; and
15.2.5 on or before the expiry of this licence, the Customer shall return to Tripleplay all copies of the Computer Software in its possession.
15.3 Without prejudice to clause 14.2.2, in the event the Customer is a reseller of the Goods and accepts the terms of the Software Licence prior to delivery of the Computer Software to its customer of the Goods, the Customer warrants and represents: (i) that it has authority from its customer to accept the terms of the Software Licence on behalf of such customer; and (ii) it brings the terms of the Software Licence to the attention of that customer prior to any use being made of the Computer Software by such customer.
16. High Risk Applications
16.1 The Goods are not specifically designed, tested, manufactured or intended for operation or use in any inherently dangerous, life endangering or life support applications, including but not limited to nuclear facilities or the flight, navigation or communication of aircraft, ground support equipment or life systems monitoring (“High Risk Use”).
16.2 The Customer represents and warrants that it will not use the Goods for such High-Risk Use.
16.3 The Customer agrees that Tripleplay will not be liable in whole or in part, for any claims or damages arising from such High-Risk Use.
17.1 It will be the responsibility of the Customer to ensure that all its requests and other requirements applicable to the Contract, the Goods, Services, Computer Software or any other item are accurately set out on the Order Form which is submitted to Tripleplay.
17.2 It shall be Customer’s responsibility to ensure that all laws regulations and other obligations applicable to it (whether statutory, regulatory, municipal and/or otherwise) are duly complied with by it. It will be a condition precedent to the performance by Tripleplay of its obligations under the Contract that all necessary licences, permits and consents have been obtained by the Customer in particular in respect of any Third-Party Software, Third-Party Licences which are not stated on the Order to be included as part of the Goods, or which are stated to be the responsibility of the Customer to obtain.
17.3 Without prejudice to the generality of Condition 16.1 the obtaining of any relevant exchange control consents will be a condition precedent to the performance by Tripleplay of any of its obligations under the Contract.
17.4 Neither party will have any liability to the other for any failure to perform or for any delay in the performance (other than as to payment) of any of its obligations under the Contract caused by any factor beyond its reasonable control.
17.5 The rights and remedies of the Customer in respect of the Contract will not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by Tripleplay to the Customer nor by any failure of or delay by Tripleplay in ascertaining or exercising any such rights or remedies. Any release, waiver or compromise or any other arrangement of any kind by Tripleplay will not affect its rights and remedies as regards any other party nor its rights and remedies against the Customer in whose favour it is granted or made except to the extent of the express terms of the release and no such release will have any effect unless granted or made in writing. The rights and remedies in this Contract are cumulative and not exclusive of any rights and/or remedies provided by law.
17.6 The Contract is personal to the Customer and the Customer may not assign, transfer or charge its rights and liabilities under the Contract or any of them, or sub-contract or otherwise delegate any of its obligations under the Contract without the prior written consent of Tripleplay.
17.7 If any provision of these Terms and Conditions is held by any court or other competent authority to be void or unenforceable in whole or in part, these Conditions will continue to be valid as to the other provisions hereof and as to the remainder of the affected provision (as the case may be).
17.8 The headings in these Terms and Conditions are for convenience only and do not affect the interpretation of the Contract.
17.9 Nothing in these Terms and Conditions will create, or be deemed to create, a relationship of partnership, principal and agent, franchisor and franchisee, or employer and employee between the parties and the Customer will not by any act or omission do or permit anything to be done which might reasonably be expected to result in an inference of any such relationship being inferred by a third party.
17.10 All notices under a Contract will be in writing and may be served by post or facsimile transmission addressed to the other party at the address given in the Contract or at such other address as a party will from time to time by notice in writing give to the other party for the purpose of service of notices under the Contract. Every such notice will be deemed to have been served by post at the expiration of 2 days after despatch of the same or if sent by facsimile transmission at 10.00am local time on the next normal Working Day of the recipient following despatch. In proving service, it will be sufficient to show in the case of a letter that the same was duly addressed prepaid and posted in the manner provided and in the case of a facsimile transmission a transmission report that it was transmitted to the correct telephone number. Saturdays, Sundays and public holidays will not in any event be treated as days on which service is effected, and service will be deemed to take place on the next normal Working Day of the recipient.
17.11 The Contract and these Terms and Conditions will be governed in accordance with the laws of the State of New South Wales, Australia, and any dispute in connection with the Contract or these Terms and Conditions shall be subject to the non-exclusive jurisdiction of the New South Wales courts and any court that may hear appeals from those courts and the parties waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum.
17.12 For the avoidance of doubt nothing in these Terms and Conditions will confer on any third party any benefit or the right to enforce any provision of these Terms and Conditions.
17.13 These Terms and Conditions and the Contract, together with all documents entered into or to be entered into pursuant to their provisions, constitute the entire agreement between the parties in relation to its subject matter and supersedes any and all prior agreements, communications and understandings between the parties regarding such subject matter other than representations made fraudulently.