Definitions 1.1 “Phrixus” means Phrixus Technologies Pty Ltd ACN 089 887 534, its successors and assigns or any person acting on behalf of and with the authority of Phrixus Technologies Pty Ltd. 1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Phrixus to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Client, is a reference to each Client jointly and severally; and (b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and (c) includes the Client’s executors, administrators, successors and permitted assigns. 1.3 “Goods” shall mean all Goods supplied by Phrixus to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Phrixus to the Client. 1.4 “Services” shall mean all Services supplied by Phrixus to the Client and includes any advice or recommendations, and professional work stipulated in the Service Level Agreement to be provided by Phrixus to the Client (and where the context so permits shall include any supply of Goods as defined above). The Services to be provided by Phrixus shall also be limited to the scope of work set out in the Schedule(s) incorporated in, or attached to the Service Level Agreement. 1.5 “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Services as agreed between Phrixus and the Client in accordance with clause 9 below. 1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
Acceptance 2.1 These terms and conditions are meant to be read in conjunction with the terms and conditions contained in Phrixus’ Service Level Agreement. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail. 2.2 Any instructions received by Phrixus from the Client for the supply of Goods and/or the Client’s acceptance of Goods and/or Services supplied by Phrixus shall constitute acceptance of the terms and conditions contained herein. 2.3 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods. 2.4 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Phrixus. 2.5 None of Phrixus’ agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Phrixus in writing nor is Phrixus bound by any such unauthorised statements. 2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act. 2.7 Where the performance of any contract with the Client requires Phrixus to obtain Goods or Services from a third party, the contract between Phrixus and the Client shall incorporate and shall be subject to the conditions of supply of such Goods and Services to Phrixus, and the Client shall be liable for the cost in full including Phrixus’ margin of such Goods or Services. 2.8 Where Phrixus supplies Managed Services, the Client must abide by the minimum hardware, software and internet requirements as specified in the Managed Services Agreement. 2.9 The Client acknowledges and agrees that all IT equipment will be kept or stored in a well-ventilated environment with ambient temperatures. Phrixus recommends the temperature should be twenty (20) to twenty-five (25) degrees Celsius (°C), or an allowable temperature of eighteen (18) to twenty-eight (28) degrees Celsius (°C).
Errors and Omissions 3.1 The Client acknowledges and accepts that Phrixus shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): (a) resulting from an inadvertent mistake made by Phrixus in the formation and/or administration of this contract; and/or (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Phrixus in respect of the Services. 3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Phrixus; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
Change in Control 4.1 The Client shall give Phrixus not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Phrixus as a result of the Client’s failure to comply with this clause.
Services 5.1 Subject to payment of all fees and charges when due under these terms and conditions, Phrixus agrees to deliver the Goods and/or Services in accordance with the provisions of these terms and conditions and the Service Level Agreement. 5.2 By entering into these terms and conditions, the Client is expressly authorising Phrixus to provide the Goods and/or Services within the agreed scope as set out in these terms and conditions and the Service Level Agreement.
Monitoring 6.1 Phrixus will monitor and provide scheduled maintenance for the Client in accordance with these terms and conditions and within the agreed scope of as set out in the Service Level Agreement. The Client expressly authorises Phrixus to install remote management agents to give effect to this. 6.2 The Client agrees that monitoring does not guarantee to prevent the occurrence of failures within the Client’s IT System.
Support Contact 7.1 The Client agrees to contact Phrixus using an Approved Method for requests for support. 7.2 For the purpose of clause 7.1, ‘Approved Method’ means: (a) Logging the request using the Phrixus online support portal; (b) Sending an email to helpdesk@phrixus.com with details of the request; (c) Calling Phrixus Technologies helpdesk line on +61 2 8213 0801 and selecting Option 1 for tech support; and/or (d) Calling Phrixus on any other telephone number(s) as may be directed by Phrixus; but does not include: (e) Contacting individual Phrixus employees or technicians by telephone or email; or (f) Any other form of communication not specified in subclauses (a) to (d) above.
Exclusions to Services Provided 8.1 The Client acknowledges and agrees that the following items are not covered under the scope of the Services provided by Phrixus: (a) office relocation; (b) issues caused by software installed or modified by persons other than Phrixus-approved technicians; (c) issues caused by hardware installed or modified by persons other than Phrixus-approved technicians; (d) issues caused by malicious action by any persons either internal or external to the Client; (e) migrations; (f) any server, PC or laptop that does not have Phrixus’ remote monitoring and management agent installed; (g) any system with illegally licensed software installed or does not comply with the software vendor’s end user license agreement (EULA); (h) the connection of the Client’s internet service and telephone cabling. This is the responsibility of the Client’s telecommunications provider and/or internet service provider. The Client’s internet connection should be a business grade connection and have its own service level agreement; (i) operation servers and PCs outside of the recommended or allowable temperatures especially if confined in cupboards/enclosures without forced ventilation.
Price and Payment 9.1 At Phrixus’ sole discretion, the Price shall be either: (a) as indicated on any invoice provided by Phrixus to the Client; or (b) Phrixus’ quoted price (subject to clause 9.2) which will be valid for the period stated in the quotation or otherwise for a period of fourteen (14) days; or (c) as indicated on Phrixus’ Service Level Agreement. 9.2 Phrixus reserves the right to change the Price if a variation to Phrixus’ quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as limitations to accessing the premises, prerequisite work by any third party not being completed, the removal of malicious or other software or as a result of any increase to Phrixus in the cost of materials and labour) will be charged for on the basis of Phrixus’ quotation and will be shown as variations on the invoice. 9.3 The Client shall be required to respond to any variation submitted by Phrixus within five (5) working days. Failure to do so will entitle Phrixus to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion. 9.4 At Phrixus’ sole discretion, a non-refundable deposit may be required for the purchase of Goods which may include servers and/or other hardware. 9.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Phrixus, which may be: (a) on delivery of the Goods/completion of the Services; (b) by way of instalments in accordance with Phrixus’ payment schedule; (c) the date specified on any invoice or other form as being the date for payment; or (d) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by Phrixus. 9.6 The Client agrees to make payment of the Price by way of direct debit unless other arrangements are made with Phrixus. 9.7 The Client agrees that, at all times, sufficient funds will be available for payment of the Price by way of direct debit. 9.8 In the event that there are insufficient funds, the Client agrees that it will make Payment of the Price within 24 hours of when the payment was due or as otherwise agreed in writing with Phrixus. 9.9 The Client agrees that it is liable for and will indemnify Phrixus for any loss or damage caused to Phrixus as a result of there being insufficient funds to pay the Price in the manner agreed. This includes but is not limited to any penalty, dishonour fee or loss which is incurred by Phrixus (directly or indirectly) as a result of the insufficient funds. 9.10 If, as indicated in clause 9.6 above, Phrixus agrees to any other arrangements for payment, payment may be made by bank cheque, electronic/online banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Phrixus. 9.11 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Phrixus nor to withhold payment of any invoice because part of that invoice is in dispute. 9.12 Unless otherwise stated, the Price does not include GST. In addition to the Price the Client must pay to Phrixus an amount equal to any GST Phrixus must pay for any supply by Phrixus under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of Goods 10.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that: (a) the Client or the Client’s nominated carrier takes possession of the Goods at Phrixus’ address; or (b) Phrixus (or Phrixus’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address. 10.2 At Phrixus’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price. 10.3 Delivery of the Goods and/or Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement. 10.4 Phrixus may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. 10.5 Any time specified by Phrixus for delivery of the Goods is an estimate only and Phrixus will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that Phrixus is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then Phrixus shall be entitled to charge a reasonable fee for redelivery and/or storage.
Risk 11.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery. 11.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Phrixus is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Phrixus is sufficient evidence of Phrixus’ rights to receive the insurance proceeds without the need for any person dealing with Phrixus to make further enquiries. 11.3 If the Client requests Phrixus to leave Goods outside Phrixus’ premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk. 11.4 It shall be the Client’s sole responsibility to remove any removable media (including, but not limited to, diskettes, CDs, DVDs, USBs or PC Cards) from the Goods prior to returning or submitting the Goods for repair or replacement. 11.5 Phrixus shall not be held liable for any loss or corruption of data or files (including, but not limited to, software programmes) resulting from servicing or repairs being undertaken on the Goods. It is the sole responsibility of the Client to back-up any data which they believe to be important, valuable or irreplaceable prior to bringing in any Goods for servicing or repairs. 11.6 Where Phrixus has provided computer software and documentation, Phrixus retains ownership of the computer software and documentation, but grants the Client a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Client’s own business). The Client will use any third-party software supplied by Phrixus, and identified as such, strictly in terms of the licence under which it is supplied. Such licences shall terminate on default of payment or any other terms of this agreement by the Client. 11.7 The Client further agrees that they shall not without Phrixus’ prior written consent: (a) copy the software; or (b) allow any third party to have access to the software; or (c) alter, modify, tamper with, or reverse engineer the software; or (d) combine the software with any other software.
Limitation of Liability 12.1 In providing the services, Phrixus only undertakes to exercise the degree of skill, care and diligence normally exercised by managed IT consultants and companies in similar circumstances. There shall be no liability whatsoever in respect of any failure to exercise any degree of skill, or level of care beyond the skill, care and diligence normally exercised by managed IT consultants or companies in similar circumstances. 12.2 Despite clause 12.1 above, in the event that Phrixus is held liable by a Court of competent jurisdiction, then its liability is limited to the equivalent of no more than the Price indicated on the two monthly invoices issued to the Client by Phrixus in the two most recent months preceding the date of the alleged failure to exercise the skill, care and diligence normally exercised by managed IT consultants or companies in similar circumstances. 12.3 The Client acknowledges and agrees that: (a) Phrixus does not supervise the work of others; and (b) The Client will not show/supply to a third party any report or document prepared by Phrixus, unless otherwise agreed to in writing by Phrixus. 12.4 Where verbal advice or approval is given ‘on-site’ by personnel employed by Phrixus, and whilst such advice or approval may be given in good faith, Phrixus will not accept any responsibility or liability for any ‘on-site’ advice unless the advice is subsequently confirmed in writing.
Title 13.1 Phrixus and the Client agree that ownership of the Goods shall not pass until: (a) the Client has paid Phrixus all amounts owing to Phrixus; and (b) the Client has met all of its other obligations to Phrixus. 13.2 Receipt by Phrixus of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised. 13.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause13.3: (a) the Client is only a bailee of the Goods and must return the Goods to Phrixus on request. (b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Phrixus and must pay to Phrixus the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Phrixus and must pay or deliver the proceeds to Phrixus on demand. (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Phrixus and must sell, dispose of or return the resulting product to Phrixus as it so directs. (e) the Client irrevocably authorises Phrixus to enter any premises where Phrixus believes the Goods are kept and recover possession of the Goods. (f) Phrixus may recover possession of any Goods in transit whether or not delivery has occurred. (g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Phrixus. (h) Phrixus may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”) 14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 14.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to Phrixus for Services – that have previously been supplied and that will be supplied in the future by Phrixus to the Client. 14.3 The Client undertakes to: (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Phrixus may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 14.3(a)(i) or14.3(a)(ii); (b) indemnify, and upon demand reimburse, Phrixus for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of Phrixus; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Phrixus; (e) immediately advise Phrixus of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales. 14.4 Phrixus and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions. 14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. 14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 14.7 Unless otherwise agreed to in writing by Phrixus, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA. 14.8 The Client must unconditionally ratify any actions taken by Phrixus under clauses 14.3 to14.5. 14.9 Subject to any express provisions to the contrary (including those contained in this clause14) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge 15.1 In consideration of Phrixus agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 15.2 The Client indemnifies Phrixus from and against all Phrixus’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Phrixus’ rights under this clause. 15.3 The Client irrevocably appoints Phrixus and each director of Phrixus as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA) 16.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Phrixus in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Phrixus to inspect the Goods. 16.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees). 16.3 Phrixus acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Phrixus makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Phrixus’ liability in respect of these warranties is limited to the fullest extent permitted by law. 16.5 If the Client is a consumer within the meaning of the CCA, Phrixus’ liability is limited to the extent permitted by section 64A of Schedule 2. 16.6 If Phrixus is required to replace the Goods under this clause or the CCA, but is unable to do so, Phrixus may refund any money the Client has paid for the Goods. 16.7 If the Client is not a consumer within the meaning of the CCA, Phrixus’ liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Client by Phrixus at Phrixus’ sole discretion; (b) limited to any warranty to which Phrixus is entitled, if Phrixus did not manufacture the Goods; (c) otherwise negated absolutely. 16.8 Subject to this clause16, returns will only be accepted provided that: (a) the Client has complied with the provisions of clause16.1; and (b) Phrixus has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible. 16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, Phrixus shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Client failing to properly maintain or store any Goods; (b) the Client using the Goods for any purpose other than that for which they were designed; (c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Client failing to follow any instructions or guidelines provided by Phrixus; (e) fair wear and tear, any accident, or act of God. 16.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Phrixus as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Phrixus has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 13.10. 16.11 Phrixus may in its absolute discretion accept non-defective Goods for return in which case Phrixus may require the Client to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs. 16.12 Notwithstanding anything contained in this clause if Phrixus is required by a law to accept a return then Phrixus will only accept a return on the conditions imposed by that law.
Confidentiality 17.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
Intellectual Property 18.1 Where Phrixus has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Phrixus. Under no circumstances may such designs, drawings and documents be used without the express written approval of Phrixus. 18.2 The Client warrants that all designs, specifications or instructions given to Phrixus will not cause Phrixus to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Phrixus against any action taken by a third party against Phrixus in respect of any such infringement. 18.3 The Client agrees that Phrixus may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Phrixus has created for the Client. 18.4 The Client will use any third-party software supplied by Phrixus, and identified as such, strictly in terms of the licence under which it is supplied.
Default and Consequences of Default 19.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Phrixus’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 19.2 If the Client owes Phrixus any money the Client shall indemnify Phrixus from and against all costs and disbursements incurred by Phrixus in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Phrixus’ contract default fee, and bank dishonour fees). 19.3 Further to any other rights or remedies Phrixus may have under this contract, if a Client has made payment to Phrixus, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Phrixus under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract. 19.4 Without prejudice to Phrixus’ other remedies at law Phrixus shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Phrixus shall, whether or not due for payment, become immediately payable if: (a) any money payable to Phrixus becomes overdue, or in Phrixus’ opinion the Client will be unable to make a payment when it falls due; (b) the Client has exceeded any applicable credit limit provided by Phrixus; (c) the Client 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 (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Cancellation 20.1 Without prejudice to any other remedies Phrixus may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Phrixus may suspend or terminate the supply of Goods and/or Services to the Client. Phrixus will not be liable to the Client for any loss or damage the Client suffers because Phrixus has exercised its rights under this clause. 20.2 For the avoidance of doubt, the suspension or termination of the supply of Goods and/or Services referred to in clause 20.1 above, will apply if, for example, the Client fails to pay on time in accordance with the payment terms. This may also include the suspension or termination of any Software and/or Software license and/or other Goods and/or Services. 20.3 Phrixus reserves all rights and entitlements to suspend or terminate the supply of Goods and/or Services until all outstanding payments are made by the Client. 20.4 The Client agrees that Phrixus is not liable for any loss or damage caused or likely to be caused as a result of the suspension or termination of the supply of Software and/or Software license(s), Goods and/or Services as a consequence of the matters set out in clauses 20.1, 20.2 and 20.3 above. 20.5 Phrixus may cancel any contract to which these terms and conditions apply or cancel delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving such notice Phrixus shall repay to the Client any money paid by the Client for the Goods and/or Services. Phrixus shall not be liable for any loss or damage whatsoever arising from such cancellation. 20.6 Phrixus reserves the right to cancel this contract without notice in the event that the Client uses illegally licensed (pirated) software. 20.7 In the event that the Client cancels delivery of Goods and/or Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Phrixus as a direct result of the cancellation (including, but not limited to, any loss of profits). 20.8 The Client agrees that cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once an order has been placed.
Privacy Act 1988 21.1 The Client agrees for Phrixus to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Phrixus. 21.2 The Client agrees that Phrixus may exchange information about the Client with those credit providers and with related body corporates for the following purposes: (a) to assess an application by the Client; and/or (b) to notify other credit providers of a default by the Client; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or (d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years. 21.3 The Client consents to Phrixus being given a consumer credit report to collect overdue payment on commercial credit. 21.4 The Client agrees that personal credit information provided may be used and retained by Phrixus for the following purposes (and for other agreed purposes or required by): (a) the provision of Goods; and/or (b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or (d) enabling the collection of amounts outstanding in relation to the Goods. 21.5 Phrixus may give information about the Client to a CRB for the following purposes: (a) to obtain a consumer credit report; (b) allow the CRB to create or maintain a credit information file about the Client including credit history. 21.6 The information given to the CRB may include: (a) personal information as outlined in 18.1 above; (b) name of the credit provider and that Phrixus is a current credit provider to the Client; (c) whether the credit provider is a licensee; (d) type of consumer credit; (e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); (f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Phrixus has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments); (g) information that, in the opinion of Phrixus, the Client has committed a serious credit infringement; (h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150). 21.7 The Client shall have the right to request (by e-mail) from Phrixus: (a) a copy of the information about the Client retained by Phrixus and the right to request that Phrixus correct any incorrect information; and (b) that Phrixus does not disclose any personal information about the Client for the purpose of direct marketing. 21.8 Phrixus will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law. 21.9 The Client can make a privacy complaint by contacting Phrixus via e-mail. Phrixus will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
Unpaid Seller’s Rights 22.1 Where the Client has left any item with Phrixus for repair, modification, exchange or for Phrixus to perform any other service in relation to the item and Phrixus has not received or been tendered the whole of any monies owing to it by the Client, Phrixus shall have, until all monies owing to Phrixus are paid: (a) a lien on the item; and (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods. 22.2 The lien of Phrixus shall continue despite the commencement of proceedings, or judgment for any monies owing to Phrixus having been obtained against the Client.
Service of Notices 23.1 Any written notice given under this contract shall be deemed to have been given and received: (a) by handing the notice to the other party, in person; (b) by leaving it at the address of the other party as stated in this contract; (c) by sending it by registered post to the address of the other party as stated in this contract; (d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission; (e) if sent by email to the other party’s last known email address. 23.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
Trusts 24.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Phrixus may have notice of the Trust, the Client covenants with Phrixus as follows: (a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund; (b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity. (c) the Client will not without consent in writing of Phrixus (Phrixus will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events; (i) the removal, replacement or retirement of the Client as trustee of the Trust; (ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.
General 25.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 25.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which Phrixus has its principal place of business, and are subject to the non-exclusive jurisdiction of the Courts in New South Wales. 25.3 Subject to clause 13, Phrixus shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Phrixus of these terms and conditions (alternatively Phrixus’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods). 25.4 Phrixus may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent. 25.5 The Client cannot licence or assign without the written approval of Phrixus. 25.6 Phrixus may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Phrixus’ sub-contractors without the authority of Phrixus. 25.7 The Client agrees that Phrixus may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Phrixus to provide Goods to the Client. 25.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. 25.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.