Australia's Best motorcycle shop retail software. Equally at home in power equipment and marine industries.
TERMS & CONDITIONS OF TRADE for C9 SOFTWARE PTY LTD
BETWEEN:
C9 SOFWARE PTY LTD (ACN 146 786 674) ("C9 Software") of the first part;
- and -
The Customer whose details are set out in Schedule 1 ("the Customer") of the second part.
WHEREAS:
C9 Software is the owner and operator of a software business which provides software and technical support and associated goods and services to customers.
The Customer has requested C9 Software to supply Goods and Services to the Customer.
C9 Software has agreed to provide Goods and Services to the Customer on the following terms and conditions.
AND THE PARTIES NOW AGREE AS FOLLOWS:
Definitions
In these Terms, unless the context requires otherwise:
“Additional Services” means all professional services provided by C9 Software in other than the Technical Support Services, and including Training Services, customer report requirements and customer analytics; website design and customisation, and onsite training and installation setup.
“Business” means the business of which the Customer is the owner and operator.
“Business Day” means a day other than a Saturday, a Sunday or a gazetted public holiday in Melbourne;
“Customer” means a customer to whom C9 Software has supplied, or which the Customer has requested C9 Software to supply, the Goods or the Services (or both) in connection with a Business;
“Customer Information” has the same meaning as that given for “Customer Information” in the Privacy Policy annexed to these Terms as in Schedule 2.
“GST” means goods and services tax within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Goods” means any goods which C9 Software has supplied to the Customer or which the Customer has requested C9 Software to supply including computer software;
“Services” means any services which C9 Software has supplied to the Customer or which the Customer has requested C9 Software to supply, including Technical Support Services and Additional Services;
“Subscription” means the agreement between C9 Software to provide to the Customer, and for the Customer to receive, the Goods and Technical Support Services in accordance with these Terms;
“Training Services” means training provided by C9 Software directed to improving the Customer’s knowledge of, and skill in, the use the Goods;
“Technical Support Services” means technical support services provided by C9 Software via phone or email. Technical Support Services does not include Training Services or Additional Services;
“Terms” means these Terms and Conditions of Trade and including any amendments, variations or modifications made to these Terms from time to time.
Interpretation
In these Terms, unless the context requires otherwise:
the singular includes the plural and vice versa and a gender includes all other genders;
another grammatical form of a defined word or expression has a corresponding meaning;
a reference to a party to these Terms, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
the terms defined in the recital of the names of the parties to these Terms have the same meaning where those terms are used in the remainder of these Terms;
any obligation that binds more than one person binds all of them jointly and each of them severally;
any right that is for the benefit of more than one person is for the benefit of them jointly and each of them severally;
where a party referred to in these Terms consists of more than one person, a reference to that party is a reference to each person who makes up that party;
a reference to any legislation, regulation, ordinance or by-law includes any section or provision of that legislation, regulation, ordinance or by-law, and means that legislation, regulation, ordinance or by-law as amended, consolidated or re-enacted from time to time; and
a references to parties, clauses, sub-clauses, schedules, exhibits or annexures are references to parties, clauses, sub-clauses, schedules, exhibits and annexure to or of these Terms, and a reference to these Terms includes any schedule, exhibit and annexure.
Application of these Terms
These Terms constitute the whole of the agreement between C9 Software and the Customer. Any other contractual terms of the Customer which are in any way contrary to or inconsistent with these Terms will not apply and will not constitute a counter-offer. By receiving a supply of Goods and Services from C9 Software, the Customer is deemed to have agreed that these Terms will apply to the supply of those Goods and Services to the exclusion of all other contractual terms, and whether or not the Customer has signed these Terms. These Terms commence on the earlier of:
the date on which the Customer signs these Terms and returns them to C9 Software; and
the date on which C9 Software begins supplying Goods and Services to the Customer.
Supply of Goods and Services
C9 Software agrees to supply the Goods and Services to the Customer as requested and otherwise in accordance with these Terms.
Without limiting any other provision of these Terms in any way, the Customer must co-operate with C9 Software and must as soon as reasonably practicable provide all information and do all things reasonably requested to assist C9 Software in connection with the supply of Goods and Services.
Payment
Unless C9 Software agrees in writing to other payments terms, the Customer must pay for the Subscription as follows:
on a subscription basis. Payments are to be made monthly in arrears. C9 will provide tax invoices for the Subscription price monthly. The invoices may also include the price of any additional or incidental goods or services acquired by the customer during the invoice period.
Following a request for a Subscription by the Customer, and before the Goods and Technical Support Services are provided, C9 Software will provide a quotation for the provision of the Subscription in accordance with Clauses 23 to 29 inclusive.
Following the quote, the Customer will then have the option to acquire the Goods and Technical Support Services;
For the avoidance of doubt, the price for the Subscription includes the Goods and the Technical Support Services. It does not include the Additional Services.
For the avoidance of doubt, the Customer is entitled to unlimited Technical Support Services during the period of the Subscription at no additional charge.
C9 Software may change the Subscription price at any time, by providing ninety (90) days notice to the Customer.
Subscription invoices are payable on the date they are sent to the Customer.
Notwithstanding anything in Clause 6, the Customer must pay for the Additional Services as follows:
Following a request for Additional Services by the Customer, and before the Additional Services are provided, C9 Software will provide a quotation for the provision of one or more Additional Services in accordance with Clauses 23 to 29 inclusive.
Following the quote, the Customer will then have the option to acquire one or more Additional Services.
The Customer may be invoiced for the Additional Services separately to the Subscription invoice. The Additional Services invoice will be payable on the date specified on the invoice.
For the avoidance of doubt, C9 Software is not obligated to provide the Additional Services. C9 Software does not guarantee that the Additional Services will always, or ever, be available to the Customer.
Consequences of Late Payment
If the Customer is more than seven (7) days late in paying an invoice after it becomes payable, C9 Software reserves the right to:
Slow down the operation of the Goods;
Degrade or limit the Customer’s access to the Goods;
Cease providing access to the Goods and Services and end the Customer’s Subscription;
at C9 Software’s absolute discretion.
End of Subscription
The Subscription is at an end:
On the day the Customer gives notice in writing of its intention to cease acquiring all of the Goods and Services;
If the situation in Clause 19 applies, on the day six (6) months after C9 Software gives notice of its intention to refuse to provide Goods and Services;
In any other case, on the day when C9 Software gives notice of its intention to cease providing all of the Goods and Services;
When the Business is sold.
For the avoidance of doubt:
In the event that the situation in Clause 9(a) applies with the result that the Customer acquires Goods and Services for part of one (1) month, the Customer remains liable for the whole of the Subscription price with respect of that month;
a purchaser of the Business is not automatically entitled to the supply of Goods or Services by C9 Software, or to enter into any agreement with C9 Software for the supply of Goods or Services.
Access by Customer after end of Subscription
After the Customer’s Subscription ends, C9 will allow the Customer to have access to the Goods for the purpose of the Customer accessing the Customer’s data, and for reporting and archiving purposes.
If the situation in Clause 11 applies, the manner and extent of access by the Customer to the Goods will be at the absolute discretion of C9 Software.
If the situation in Clause 11 applies, the duration of the access by the Customer to the Goods will be at the absolute discretion of C9 Software.
Notwithstanding anything in Clauses 12 and 13, if the situation in Clause 11 applies, C9 Software will give the Customer seven (7) days notice before it removes the Customer’s access.
For the avoidance of doubt, after the Subscription ends, the Customer will not be able to transact using the Goods.
Time for Supply of Goods and Services
Any time quoted by C9 Software for the supply of Goods and Services is an estimate only and not binding on C9 Software. Notwithstanding that, C9 Software promises to use reasonable endeavours to provide the Goods and Services as soon as reasonably practicable.
Change to Goods and Service
C9 Software reserves the right to make any changes to the Goods or Services provided at any time and without warning at its absolute discretion.
Refusal to provide Goods and Services
C9 Software may refuse to provide Goods and Services to the Customer for any reason at its absolute discretion.
For a Customer who has already received Goods and Services, C9 Software must provide the Customer with written notice of its decision to refuse to provide Goods and Services to the Customer at least six (6) months before C9 Software ceases to provide Goods and Services.
For a Customer who has not received Goods or Services, C9 Software may refuse to provide Goods and Services.
Ownership and Delivery of Goods
C9 Software will retain ownership of all Goods to be supplied to the Customer until the Customer has paid for the Goods in full.
Any Goods supplied to the Customer will be at the risk of the Customer from the time that the Goods are delivered to the Customer (and notwithstanding that C9 Software might retain ownership of the Goods pursuant to Clause 21 above).
Quotations
Before C9 Software supplies Goods and Services to the Customer, C9 Software will give a quotation to the Customer for those Goods and Services. If requested by the Customer, C9 Software will provide a quotation at no charge.
The Customer must provide to C9 Software any information that is requested to enable C9 Software to prepare a quotation.
C9 Software will give a quotation to the Customer within a reasonable time of the Customer providing to C9 Software the information that has been requested by C9 Software.
Any quotation given by C9 Software is an estimate only and is not binding on C9 Software. To avoid doubt, a quoted price does not represent a limit or cap on the price which C9 Software is able to charge for Goods and Services to be supplied to the Customer.
C9 Software will give notice to the Customer as soon as reasonably practicable if, after a quotation is given, C9 Software becomes aware that the final price to supply the Goods and Services will vary significantly from the estimated price given in the quotation.
Quotations are only current for a period of 14 days after the quotation is given to the Customer. The Customer will be liable to pay any additional price for Good and Services that are supplied to the Customer after the quotation has ceased to be valid.
The Customer acknowledges and agrees that quotations given by C9 Software are basic quotations only. If requested by the Customer, C9 Software will provide a detailed or customised quotation. C9 Software will charge the Customer for the preparation of a detailed or customised quotation (including, without limitation, all site visits, research and systems design) in accordance with these Terms and C9 Software’s rates of charge for the time being PROVIDED THAT C9 Software will not charge the Customer for the following aspects of the preparation of a detailed or customised quotation:
drafting of the detailed or customised quotation itself;
calculation of the estimate of the Goods and Services to be supplied.
Supply of Customer Information
C9 Software and the Customer are bound by the terms of the Privacy Statement annexed to these Terms and Conditions as Annexure A.
Limitation of Liability
Subject to Clause 32 below, except where C9 Software has been negligent, C9 Software will have no liability whatsoever in connection with the supply of Goods and Services to the Customer pursuant to these Terms.
Nothing in these Terms is intended to exclude or modify, or has the effect of excluding or modifying, any terms, warranties or guarantees which, by operation of any statute (including, without limitation, the Australian Consumer Law):
form part of or apply to these Terms; and
cannot be modified or excluded from forming part of or applying to these Terms.
If in connection with the supply of Goods and Services to the Customer:
C9 Software has been negligent; or
any terms, warranties or guarantees which, by operation of any statute (including, without limitation, the Australian Consumer Law):
form part of or apply to these Terms; and
cannot be modified or excluded from forming part of or applying to these Terms
then the liability of C9 Software is limited to the following:
in respect of the supply of Goods to the Customer (at the option of C9 Software):
the repair of the Goods; and
the payment of the cost of replacing the Goods or acquiring equivalent Goods;
in respect of the supply of Services to the Customer (at the option of C9 Software):
the supply of the Services again;
the payment of the cost of having the Services supplied again.
Indemnification
The Customer must indemnify C9 Software for any claims, demands, losses, damages, liabilities and costs (including any legal costs on an indemnity basis) whatsoever which C9 Software might suffer or incur (and whether directly or indirectly) as a result of:
any breach of these Terms by the Customer; and
any breach by the Customer of any terms of use of software or any infringement of the intellectual property of a software provider or manufacturer.
General
Severability: If any provision of these Terms proves to be illegal or unenforceable pursuant to any statute, rule of law or for any other reason, then that provision is deemed to be omitted from these Terms without affecting the legality of the remaining provisions of these Terms, which will continue in full force and effect.
GST: All prices and monetary amounts stated in these Terms are exclusive of GST and if any GST is payable by the Customer in respect of the supply of Goods or Services to the Customer, then the price specified for that supply (‘original price’) is to be increased so that C9 Software receives an amount (‘increased price’) which, after subtracting the GST liability of C9 Software on that increased price, results in C9 Software obtaining the original price after payment of that GST liability.
Entire Agreement: These Terms constitute the entire agreement between the parties with respect to the subject matter hereof. Any prior arrangements, agreements, representations or undertakings are hereby superseded.
Force Majeure: Neither party will be liable in damages for, nor will this Terms be terminable or cancelable by reason of, any delay or default in such party's performance if such default or delay is caused by events beyond such party's reasonable control including, but not limited to, acts of God regulation or law or other action of any Government or agency thereof, war or insurrection civil commotion destruction of production facilities or materials by earthquake fire flood storm labour disturbance or other accidental or other cause beyond the reasonable control of the party. Each party agrees to endeavour to resume its performance hereunder as soon as is reasonably practicable if such performance is delayed or interrupted by reason of force majeure.
Waiver: Any waiver in regard to the performance of these Terms operates only if in writing and applies only to the specified instance, and must not affect the existence and continued applicability of the terms of the Terms thereafter.
Amendments: These Terms may not be varied except in writing signed by both of the parties.
Governing Law and Jurisdiction: These Terms must be read and construed according to the laws of the State of Victoria and the Courts of the State of Victoria will have exclusive jurisdiction for the resolution of any dispute between the parties arising out of these Terms.
No Assignment: The Customer must not assign the benefit of these Terms without first obtaining the written consent of C9 Software. C9 Software may grant or withhold its consent at its absolute discretion, and may grant its consent subject to any conditions. C9 Software may assign its rights and benefits under these Terms at any time and without first obtaining the consent of the Customer.
