ABN 61 094 352 959
General Terms and Conditions1. Scope
1.1 All products are sold or rented by SmartCap Technologies (“SCT”) upon these Terms & Conditions. If there is any inconsistency between the provisions of any SCT quote or tender response and these Terms and Conditions, the quote or tender response will apply to the extent of the inconsistency.
1.2 Unless SCT otherwise agrees in writing, none of SCT’s quotes are contractual offers and all quotes lapse after 30 days or the lesser period specified in the quote.
1.3 No orders submitted by the purchaser will bind SCT until accepted by SCT and SCT may accept any order in whole or in part.
1.4 All specifications, illustrations, drawings, data, dimensions and weights in respect of products are believed to be accurate but are given for the purchaser’s information only. To the extent permitted by law, they do not form part of the contract of supply.
2. Price and Payment
2.1 Prices are listed or quoted by SCT in Australian dollars unless specified otherwise and, subject to paragraph 1.2, may be varied without notice.
2.2 In the case of imported products, prices are calculated by SCT on the basis of exchange rates selected by SCT from time to time. All SCT quotes will include the exchange rate used to calculate prices specified in those quotes. If an imported product is delivered to SCT or its agent in Australia after the date upon which SCT last advised its purchaser of its price, and the exchange rate used to calculate that price differs, by more than 2%, from the spot rate quoted by the Commonwealth Bank of Australia (“CBA”) for conversion of Australian dollars into the relevant currency as at the date SCT or its agent, at SCT’s election, took delivery of that product in Australia (and SCT will inform the purchaser of the relevant date if the purchaser so requests), either SCT or the purchaser may revise 75% of the total price last advised to the purchaser by the same percentage rate.
2.3 All prices are EXW SCT offices in Brisbane. Freight to purchaser’s premises will be charged to purchaser at cost. If the purchaser wishes to use its own carrier, the purchaser will pay all freight and insurance costs ex-SCT’s store and will indemnify SCT and keep SCT indemnified from and against any claims, demands, losses and/or liabilities arising in respect of the transportation of products by the purchaser’s carrier.
2.4 Unless SCT states otherwise, all prices exclude GST and other government taxes and duties which will be determined by SCT and added to the invoice. Taxes and duties paid by SCT are not refundable to the purchaser. The purchaser will, on demand, reimburse SCT any amounts so paid.
2.5 Unless SCT agrees otherwise in writing, where:
(a) a credit account has been approved by SCT, accounts are payable in Australian dollars in full within 30 days from date of invoice, or unless specified shorter settlement period in the quote; or
(b) a credit account has not been approved by SCT, full payment in Australian dollars must be made in cash on delivery.
2.6 The purchaser must not make any deduction from payments due to SCT in respect of any set-off or counter-claim unless SCT agrees in writing.
2.7 If the purchaser fails to make any payment to SCT when payment is due, SCT may, without prejudice to any of its other rights and remedies:
(a) charge penalty interest on the overdue amount. Such penalty interest accrues every day on a compounding basis, at a yearly percentage equivalent to the General Interest Charge (GIC) rate published by the Australian Tax Office and is calculated from the date payment was due to the date of full and final payment. Any payment made by the purchaser to SCT will be applied firstly against any accrued interest and then in reduction of the overdue amount; and/or
(b) cancel any order by the purchaser and/or suspend further deliveries of products to the purchaser.
2.8 SCT Standard Invoicing Schedule are as follows:
(a) Full System & initial deployment orders
50% upon receipt of Purchase Order (PO),
30% upon shipment of goods, and
20% upon commissioning or completion of on-site deployment services, whichever is first.
(b) Spare parts and additional system orders
100% upon receipt of PO.
3. Delivery and Force Majeure
3.1 SCT will make reasonable efforts to adhere to quoted, requested or agreed delivery dates. However, SCT will not be liable for any failure to deliver products or services on or by these dates.
3.2 If the purchaser uses its own carrier, delivery of the products will be ex works SCT Brisbane.
3.3 SCT will not be liable for any loss or damage in respect of any failure or delay in performance of its obligations under these Terms and Conditions if that failure or delay is due in whole or in part to any cause beyond its control (including, without limitation, fire, storm, flood, earthquake, strikes, delays in transit, shortage of materials or machinery, delays in delivery or shipment on the part of manufacturers, suppliers or agents). In such an event, SCT may extend the quoted, requested or agreed delivery dates or deliver part of an order or suspend delivery during that period of delay or may cancel the order.
4. Risk and Title
4.1 All products will be at purchaser’s risk upon delivery to the purchaser or its carrier.
4.2 SCT retains title to all products supplied by it to the purchaser, until SCT has received payment in full of all sums due in connection with the supply of all products by SCT to the purchaser at any time. In the case of payment by cheque or bill of exchange, title will not pass to the purchaser until it is honoured.
4.3 If payment for any product is overdue, SCT is entitled, without prejudice to any of its other rights and remedies, to repossess products owned by SCT and to enter into any premises upon which these products are stored, without notice, for this purpose. SCT will not be liable to the purchaser for any loss or damage suffered by the purchaser and the purchaser will indemnify SCT against any claims or demands made against SCT by third parties in connection with SCT’s exercise of its rights under this paragraph 4.3.
4.4 Nothing in these Terms and Conditions affects SCT’s rights as an unpaid seller.
4.5 In the case of rentals SCT retains title until such time as the equipment is purchased by the renter. Renter is responsible for the equipment and must keep it in good order and insured against theft and other sources of loss. At termination of the rental period, renter must return the equipment to SCT offices or allow SCT access to the machines to remove the equipment.
5. Inspection and Return of Products and Cancellation of Orders
5.1 The purchaser must inspect the products immediately on delivery. Without limiting SCT’s right to dispute such a claim, any claim for damaged or short or wrong delivery must be made in writing and received by SCT within seven working days of delivery. Otherwise, the purchaser will be deemed to have accepted the products, and to the extent permitted by law, the products will be deemed to be free of any defects which would be apparent on reasonable examination. Allegedly damaged or wrongly delivered products must not be returned to SCT until requested and must be made available for inspection by SCT or its representative. To the extent permitted by law, if SCT is satisfied that products are damaged (other than as a result of transit by the purchaser’s carrier) or that there has been wrong or short delivery of products, SCT will, at its option, replace these products or refund or credit any portion of the invoiced price attributable to these products.
5.2 Subject to paragraphs 5.1 and 6, products may only be returned to SCT for credit:
(a) with, and in accordance with the terms of, the prior approval of SCT (“Returns Merchandise Authorisation” (RMA));
(b) after a RMA number has been issued; and
(c) so long as the products are received by SCT in their original and resaleable condition.
Where the products are so returned, unless the error was due to shipment not being in accordance with the customer order, a handling and restocking charge of 15% of the total invoiced price will be charged and deducted from the credit. If SCT requires products to be returned by its nominated carrier it will bear the cost. Otherwise, SCT will not be responsible for any expense in connection with the return of products.
5.3 A request for cancellation of any order by the purchaser must be notified to SCT in writing no later than seven days prior to any quoted, requested or agreed delivery date and must be agreed to by SCT. If SCT agrees to the cancellation, a cancellation fee of 10% of the total value of the order cancelled will be payable by the purchaser at SCT’s option.
6. Warranty and Exclusion of Liability
6.1 Subject to paragraphs 6.2, 6.3 and 6.4, SCT will repair or replace, with the same or functionally equivalent product, at its option, its hardware products which it ascertains are defective or unserviceable due to poor materials, or deficient manufacture for a period of 12 months from their date of delivery or the period specified in the relevant quotation. Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished or used parts may be used to repair the goods. If SCT, by its sole determination, is unable to replace the defective product, it will refund the depreciated purchase price of the product. A product repaired or replaced under this warranty will be warranted only for the remainder of the original period. All other items, include headwear and sensors will have a 6 month warranty.
6.2 This warranty does not cover:
(a) damage to any product during shipment;
(b) any product that is repaired or altered by the purchaser or any third party other than with SCT’s prior written consent;
(c) any product that fails or is damaged as a result of improper storage, operation or maintenance, operation under abnormal or unsuitable conditions, misuse, neglect, abuse, accident or act of God;
(d) accessories or consumables such as antennas, fuses and batteries; and
(e) any shipment and/or travelling expenses.
6.3 No products may be returned to SCT for service under this warranty without a RMA. All requests to SCT for a RMA must include the product name and serial number, details of proof of purchase and a description of the alleged defect.
6.4 All products returned to SCT for service under this warranty must be returned within the period specified in paragraph 6.1 and in accordance with all other terms of the RMA.
6.5 All products returned to SCT which are deemed not a warranty claim will be quoted on for repair. Quotes will be valid for 30 days. The products will be stored for this time after which the hardware may be disposed of.
6.6 Except as expressly provided in these Terms and Conditions, to the extent permitted by law, all warranties, representations, terms and conditions concerning products and/or services to be supplied by SCT are expressly excluded. SCT will not be liable, nor will there be any remedy against SCT, for any consequential loss, damage, costs, expenses or other injury or harm, whether on a contractual, tortious (including without limitation, negligence) or statutory basis or otherwise.
6.7 Provisions of the Trade Practices Act, 1974 (Cth) and other legislation and laws from time to time in force in Australia, may imply warranties or conditions or impose obligations or liability upon SCT which cannot, in whole or in part, be excluded, restricted or modified. These terms and conditions must be read and construed subject to these statutory provisions.
If such statutory provisions apply then, subject to paragraph 6.1, liability (if any) arising out of or in relation to the products or services supplied by SCT will be limited, at its option, to:
a) in the case of products: the replacement or repair of products or supply of equivalent products or the payment of the cost of replacing the products or having the products repaired or of acquiring equivalent products; and
b) in the case of services: the supply of the services again or the payment of the cost of having the services supplied again.
7. Infringement of Property Rights
7.1 Nothing in these Terms and Conditions confers or is deemed to confer on the purchaser any license, right or other interest in any intellectual or other property or rights comprised in the products or in any designs, drawings or specification relating to the products, which at all times, as between SCT and the purchaser, are vested in SCT.
7.2 If the purchaser becomes aware of any infringement or potential infringement of any of SCT’s intellectual or other property or other rights in the products or if the purchaser becomes aware of any claim by a third party that a product supplied by SCT infringes the intellectual or other property or other rights of that third party, it will immediately notify SCT of the infringement or potential infringement or claim and will give every assistance to SCT in that connection that SCT may reasonably require.
8.1 These Terms and Conditions:
(a) supersede all of SCT’s previous general terms and conditions;
(b) may only be varied in writing signed on behalf of SCT; and
(c) are to be governed by, and construed in accordance with, the laws of the State of Queensland. The parties submit to the jurisdiction of the courts of this State.
8.2 In these Terms and Conditions:
(a) “$” and “dollar” refer to Australian Dollars – unless otherwise specified.
(b) the singular includes the plural and vice versa;
(c) reference to a right or obligation of any two or more persons is to be taken as conferring that right or their assuming that obligation, as the case may be, severally; and
(d) the word “person” includes a company, firm or other legal entity.
8.3 Unless SCT agrees otherwise in writing, SCT will not be bound by provisions inconsistent with these Terms and Conditions that appear in any purchaser’s acknowledgement, purchase order or in any other communication between SCT and the purchaser.
8.4 It is a requirement that all SmartCap users fully consider the implications of implementing a new fatigue monitoring technology within their Fatigue Risk Management Framework. SmartCap is a decision support tool, aimed at providing additional information to operators in order for them to make better decisions. Under no circumstances does SmartCap reduce the responsibility of the user to monitor their own fatigue levels, and to act in a proper and safe manner.