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e-lusion Pty Ltd:
ABN 48 094 370 664
Customer Terms ("Terms")
These Terms and any document(s) referred to in them constitute the entire agreement about e-lusion Pty Ltd supply of the Products and services to Customer and Supersedes all prior understanding*, arrangements and agreements.
Words with special meanings are, defined in clause 1. A reference in these Terms to: (a) the singular includes the plural and vice versa; (b) the word "including" means "including, but not limited to," and the word "Includes' means "Includes, without limitation,"; (c) A reference to a gender includes all genders, and (d) a reference to a person Including a party) includes an individual, company, other body corporate, partnership, firm, joint venture, or a trust.
1) Definitions
In these Terms:
"Customer" means the person, business or company that is the purchaser of the Products or Goods:
"Products or Goods" means any products (Including software or web hosting) or services (where applicable) supplied to Customer by e-lusion Pty Ltd and described in e-lusion Pty Ltd's Invoice:
"Sales Contract" means any sales contract or distribution agreement entered into by Customer and e-lusion Pty Ltd in respect of the Products, Goods and services supplied to Customer in which these Terms are deemed to be incorporated: and "e-lusion Pty Ltd" means e-lusion Pty Ltd (ABN 48 094 370 664).
2) Orders
a) All orders for Products or Goods placed by Customer:
i) must be made in accordance with e-lusion Pty Ltd order policy as amended by e-lusion Pty Ltd from time to time. the current version of which is set out on e-lusion Pty Ltd ("Order Policy"): and
a) are subject to acceptance by e-lusion Pty Ltd, and no, order will be deemed to have been accepted by e-lusion Pty Ltd unless Products are supplied or a back-order or delivery delay is confirmed in writing by an authorised representative of e-lusion Pty Ltd to Customer.
b) e-lusion Pty Ltd may reject any order placed by Customer it there is an insufficient supply of Products or Goods which prevents e-lusion Pty Ltd from being able to fulfil such order
c) e-lusion Pty Ltd will not be bound by any terms attaching to Customers order and, unless those terms are expressly agreed to in writing by an authorised representative of e-lusion Pty Ltd, Customer agrees that those terms are hereby excluded.
3) Payment
a) The price of the Products will be e-lusion Pty Ltd's quoted price.
b) Payment is required prior to delivery of the Products to Customer unless agreed otherwise in writing by an authorised officer of e-lusion Pty Ltd. If Customer fails to make payment in accordance with this clause 3(b) after demand for payment by e-lusion Pty Ltd, all amounts owing by Customer to e-lusion Pty Ltd on any account (credit) will e-lusion Pty Ltd immediately become due and payable together with legal costs of enforcement.
c) e-lusion Pty Ltd may, in its sole discretion:
i) suspend the provision of credit or their web hosting until all amounts owing are paid for in full; and
ii) from time to time and at any time, may cancel my credit facility it makes available to Customer.
d) Customer will be liable to pay interest on any overdue amount at the annual rate of 5% above the prevailing base lending rate quoted by the St George Bank. Interest will accrue daily from the date payment became overdue until e-lusion Pty Ltd has received payment of the overdue amount, together with any interest accrued.
e) Unless stated otherwise in these Terms (or in writing by e-lusion Pty Ltd's authorised representative), all prices quoted for Products or Goods are exclusive of all taxes, handling, delivery, agents' charges and any other charge, duty or e-lusion Pty Ltd post.
f) Customer must pay e-lusion Pty Ltd, on demand, any tax (other than income tax) payable under these Terms, any matter or thing done under these Terms or any payment, receipt or other transaction contemplated by these Terms, including any goods and services or value added tax, customs duty sales tax, excise duty, stamp duty, other duty, governmental charge, fee, levy or e-lusion Pty Ltd post, together with any fine, penalty with interest payable because of a default by Customer.
g) Customer must pay to e-lusion Pty Ltd any amount Customer must pay under clause 3(f) in full despite any right of sat-off that Customer may have.
h) Customer shall pay the full amount due to e-lusion Pty Ltd under this clause and shall not deduct from that amount any tax in relation to purchase of the Products or Goods. Customer shall reimburse e-lusion Pty Ltd, fix any taxes e-lusion Pty Ltd pays on its behalf.
4) Delivery
Delivery times advised to Customer are estimates only and e-lusion Pty Ltd will not be liable for any loss, damage or delay suffered or incurred by Customer or its customers arising from late or non-delivery of the Products.
5) Part deliveries
e-lusion Pty Ltd may make part deliveries of any order, and each part delivery will constitute a separate supply of the Products or Goods upon these Terms.
6) Software
a) To the extent that a Product or Goods supplied under these Terms is a software Product then, in addition to these Terms, that Product will be supplied subject to the terms and conditions of the relevant licence agreement applicable to it
b) Software licence agreements may be packaged with the software. may be separately provided to Customer for execution or may require on-screen acceptance by Customer. Customer agrees to use the software Product In accordance with the terms and conditions of the relevant licence agreement.
c) Where the term "supply" is used in these Terms to refer to a software Product, such term means the sale and purchase of the licence to use that Software Product
7) Inspection and Acceptance
Customer must
a) in the case of all Products and Goods ordered (other than Software Products), inspect such Products upon delivery to Customer's premises; or,
b) in the case of software Products, test or inspect such Software or web hosting Products upon those Products being authorised by e-lusion Pty Ltd for downloading by Customer, and must, within 7 days of delivery or downloading (as the case may be), give written notice to e-lusion Pty Ltd of any matter or thing by which Customer alleges that the Products do not accord with Customer's order Failing such notice and to the extent permitted by law, the Products will be deemed to have been accepted by Customer.
8) Title and risk
a) Products supplied by e-lusion Pty Ltd to Customer will be at
Customers risk immediately upon:
i) delivery of the Products or Goods to the Customer, Customer's agent or into the Customers Custody or control: or
ii) collection of the Products by the Customer's nominated carrier or agent.
b) Customer must
i) effect and maintain with a reputable insurance company insurance for the Products, at its cost. against all risks as it thinks appropriate:
ii) note the interest of e-lusion Pty Ltd on the insurance policy; and
iii) produce a certificate of currency of the insurance effected by Customer under this clause 8(b) to e-lusion Pty Ltd, upon request.
c) Risk in the Products will remain with Customer at all times unless e-lusion Pty Ltd retakes possession of the Products in accordance with clause 8(f)(ii).
d) Title in the Products supplied by e-lusion Pty Ltd to Customer will not pass to Customer and will
remain the absolute property of e-lusion Pty Ltd until such time as e-lusion Pty Ltd has been paid by Customer all monies due and owing to it by the Customer in relation to any amount. Title to those Products which are software remains with e-lusion Pty Ltd and/or the applicable third party licensor(s) at all times.
e) Until the Products have been paid for
i) Customer must properly segregate and store the Products or Goods in such manner as to clearly indicate that they are the property of e-lusion Pty Ltd; and
ii) Customer may sell the Products or Goods and shall keep records of the Products In the ordinary course of its business as fiduciary agent for e-lusion Pty Ltd and Customer agrees to deposit all proceeds of any such sale (including any proceeds received from any insurance claims) in a separate bank account and agrees not to mix the proceeds with any other monies and hold the monies on trust for e-lusion Pty Ltd and shall immediately account for such proceeds to e-lusion Pty Ltd.
f)If Customer has breached these Terms or the terms of any relevant Sales Contract. Customer authorises e-lusion Pty Ltd, at any time, to enter onto any premises upon which e-lusion Pty Ltd Products are stored to enable e-lusion Pty Ltd to:
i) inspect the Products; and/or
ii) reclaim the Products.
g) If Customer sells, disposes of or otherwise deals with Products or Goods or any part thereof before full payment has been received by e-lusion Pty Ltd. Customer must advise e-lusion Pty Ltd in writing, at such times as e-lusion Pty Ltd may request, specifying full details of the Products sold, disposed of, utilised or otherwise dealt with.
h) Customer acknowledges that in the case of Software Products, any refusal or failure to pay may result in cancellation of the licence to use the software Product.
i) Customer agrees that the provisions of this clause 8 apply despite any arrangement under which e-lusion Pty Ltd grants credit to Customer.
9) Returns
a) Customer must notify e-lusion Pty Ltd in writing of my Products it wishes to return within 30 days from the date of the invoice relating to those Product..
b) Returns will be subject to e-lusion Pty Ltd's returns policy as advised to Customer and amended by e-lusion Pty Ltd from time to time; the current version of which is set out on e-lusion Pty Ltd (Returns Policy").
c) Each Claim for the return at Products by Customer will be dealt with in accordance with the Returns Policy. Any Substitute Products to be shipped to Customer in accordance with the Returns Policy will be sent by e-lusion Pty Ltd to Customer by ordinary freight pre-paid.
d) e-lusion Pty Ltd will not be liable for any damage or defects in the Products that have been Caused by the e-lusion Pty Ltd proper storage, warehousing or transport, or by any neglect, abuse or e-lusion Pty Ltd proper use, installation, maintenance or unauthorised repair of (M's Products.
e) The provisions of this clause 9 do not extend to any Products which have been added to, varied, or otherwise modified by, any person other than e-lusion Pty Ltd.
10) Force majeure
If the performance of e-lusion Pty Ltd's obligations under these Terms or any relevant Sales Contract is prevented. restricted or affected by force majeure including strike, lock out, raw material shortage, breakdown of plant or website, transport or equipment or any other cause beyond the reasonable control of e-lusion Pty Ltd. e-lusion Pty Ltd Will give notice of such cause to Customer and after 60 days from the receipt by Customer of such notice, either party may terminate the relevant Sales Contract without penalty.
11) Customer's Cancellation
a) Unless otherwise agreed in writing by an authorised officer of e-lusion Pty Ltd. Customer may not cancel an order which has been accepted by e-lusion Pty Ltd.
b) If Customer's right of Cancellation is agreed to by an authorised officer of e-lusion Pty Ltd in writing, the right must be exercised by notice in writing from Customer to e-lusion Pty Ltd not later than 7 days before the estimated date of delivery by the manufacturer or e-lusion Pty Ltd (as the case may be).
c) Unless otherwise agreed between Customer and e-lusion Pty Ltd, upon cancellation prior to delivery, any deposit paid by Customer will be forfeited to e-lusion Pty Ltd.
12) Default of Customer
a) Without prejudice to any of e-lusion Pty Ltd's other rights under these Terms. If Customer fails to make any payment due to e-lusion Pty Ltd under these Terms, e-lusion Pty Ltd may, in its sole discretion, and without further liability to Customer.
i) refuse to make further supplies to Customer under the relevant Sales Contract: and/or
ii) terminate the Sales Contract without notice.
iii) in the case of web hosting, e-lusion Pty Ltd can suspend the account until account is settled or cancel account after 30 days of payments due date, if it chooses. e-lusion Pty Ltd will not be liable for any losses incurred by a suspended or cancelled account.
b) The Customer agrees that these Terms shall give rise to an interest in land thereby enabling e-lusion Pty Ltd to lodge a caveat against the title to any land owned Partly or wholly by the Customer, in order to protect and secure the interests of e-lusion Pty Ltd under these Terms and under any Sales Contract.
c) In the event that e-lusion Pty Ltd lodges a caveat against any land owned partly or wholly by the Customer, the Customer hereby irrevocably agrees to endorse its consent upon any relevant forms or documents to enable the lodgement and timely registration of my such caveat by e-lusion Pty Ltd.
13) Warranty
a) Products are covered by manufacturers' warranty. To the extent permitted by law, e-lusion Pty Ltd's entire responsibility with respect to warranties for the Products is to pass on to Customer the benefit of any such warranties, Subject to clause 13(c), software Products are not warranted by e-lusion Pty Ltd under these Terms. Such software Products are warranted in accordance with the relevant licence agreements governing their use.
b) To the extent permitted by law, the manufacturers' warranties referred to in clause 13(a) are in substitution for all other terms, Conditions and warranties, whether implied by statute or otherwise (including implied warranties with respect to merchantability and fitness for purpose) and all such terms, conditions and warranties am expressly excluded.
c) Certain legislation may imply warranties or conditions or impose obligations upon e-lusion Pty Ltd which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. These Terms must be read subject to those statutory provisions. If those statutory provisions apply, to the extent to which e-lusion Pty Ltd is able to do so, its liability will be limited, at its option, to:
i) in the case of products: the replacement of the products or re-supply of equivalent products; repair of the products; payment of the cost of replacing the products or acquiring equivalent products: or the payment of the cost of having the products repaired: and
ii) in the case of services: the supply of the services again; or the payment of the reasonable cost of having the services supplied again.
d) e-lusion Pty Ltd does not warrant that repair facilities or parts will be available in respect of any of the Products.
14) Liability
a) To the extent permitted by law. e-lusion Pty Ltd will not be liable to Customer or any other person under any circumstances for any loss of use, profit, revenue, interest, goodwill or data, or for any injury or death to any person, or for any indirect, incidental or consequential damages sustained or incurred by Customer, whether such liability arises directly or indirectly as a result of:
i) any negligent act or omission or wilful misconduct of e-lusion Pty Ltd or its employees or agents:
ii) the supply, performance or use of any Products or services; or
iii) any breach by e-lusion Pty Ltd of its obligations under these Terms or any relevant Sales Contract
15) Credit assessment
a) If any Products are supplied to Customer on credit. e-lusion Pty Ltd may need to disclose to a credit reporting agency certain information referred to in clause 15(c) about Customer when assessing Customers application for credit and managing Customer's account with e-lusion Pty Ltd. Customer authorises e-lusion Pty Ltd to disclose such information to a credit reporting agency for these purposes.
b) Subject to e-lusion Pty Ltd's obligations under the Privacy Act 1988 (Cth) as amended and any other applicable laws. e-lusion Pty Ltd may provide the information referred to in clause 15(c) to a credit reporting agency to obtain a consumer credit report about Customer or to allow the credit reporting agency to create w maintain a credit information file about Customer. Customer agrees that e-lusion Pty Ltd may disclose a credit report about it to any credit provider, debt collecting agency or e-lusion Pty Ltd's insurers for the purposes of assessing Customer's creditworthiness or to collect any overdue payments (as the case may be).
c) e-lusion Pty Ltd may disclose the following information relating to Customer in accordance with clauses 16(a) and (b):
i) Customer's name and address;
ii) credit limits an Customers amounts;
iii) the amount of my payments which are overdue for at least 60 days;
iv) where an overdue payment has been previously reported, advice that the payment is no longer overdue;
v) any method of payment including, but not limited to, cheques, electronic funds transfer, PayPal transfer, credit card payments which have been dishonoured;
vi) information that, in the opinion of e-lusion Pty Ltd. Customer has committed a serious credit infringement: and
vii) information that e-lusion Pty Ltd has ceased to supply the Products and services to Customer.
d) Customer agrees that e-lusion Pty Ltd may obtain information about Customer from any business which provides information about the Commercial creditworthiness of persons for the purposes of assessing Customers application to purchase the Products on credit and collecting any overdue amounts.
e) e-lusion Pty Ltd may refuse to supply the Products to Customer on credit on the basis of e-lusion Pty Ltd's credit assessment of Customer.
16) Privacy
a) Customer agrees to e-lusion Pty Ltd collecting, using and disclosing information about Customer of the kind referred to in clause 15(c) for various purposes, including to:
i) assess creditworthiness as outlined in clause 15;
ii) supply the Products and services to Customer and the management of Customer's account including suppliers;
ii) communicate with Customer about the Products and services which e-lusion Pty Ltd or its partners or affiliates may provide to Customer:
iv) Implement these Terms and any Sales Contract; and
v) comply with relevant laws, e-lusion Pty Ltd at the Written request of Customer, will:
vi) provide Customer with access to any personal information relating to Customer held by e-lusion Pty Ltd; and
ii) correct or amend any personal information relating to Customer held by e-lusion Pty Ltd which is inaccurate or out of date.
iii) e-lusion Pty Ltd will handle Customer's personal information in accordance with relevant laws.
17) Intellectual Property
Customer acknowledges that:
i) all trademarks, copyright and other intellectual property rights ("Intellectual Property') embodied in or in connection with the Products and any related documentation, parts or software are the sole property of e-lusion Pty Ltd or Its suppliers: and
ii) all Intellectual Property of e-lusion Pty Ltd or its suppliers may only be used by Customer with the express written consent of e-lusion Pty Ltd or its suppliers, during the continuance of any relevant Sales Contract, and such consent extends only to use essential for the purposes stated in it.
b) Customer must not register or use any trade marks, trade name, domain name, trading style or Commercial designation or design used by e-lusion Pty Ltd or its suppliers in connection with the Products.
c) Customer will indemnify e-lusion Pty Ltd against all liabilities, damages, costs and expenses which e-lusion Pty Ltd may suffer or incur as a result of any work performed by e-lusion Pty Ltd in accordance with Customer's specifications or as a result of the Combination or use of the Products with other equipment, parts or software not supplied by e-lusion Pty Ltd, and which results in the infringement of any Intellectual Property of any person.
18) Confidentiality
a) Customer acknowledges that e-lusion Pty Ltd has disclosed and may from time to time disclose to Customer certain confidential information and documentation of e-lusion Pty Ltd relating to the Products, their marketing, use, maintenance and software, including technical specifications ("Confidential Information").
b) Subject to clause 18(e), Customer must:
i) only use the Confidential Information solely f r the purposes contemplated under any relevant Sales Contract; and
ii) not, during the continuation of such Sales Contract or thereafter, disclose (whether directly or indirectly) to any third party the Confidential Information, other than is required to carry out Such purposes.
c) If disclosure of Confidential Information to third parties is necessary, Customer will obtain from such third parties binding agreements to maintain in confidence the Confidential Information disclosed at least to the same extent as Customer is bound to protect e-lusion Pty Ltd's Confidential Information under this Clause 1 S.
d) Upon the expiry or termination of any relevant Sales Contract, Customer must cease to use and must return or destroy (as e-lusion Pty Ltd may instruct) e-lusion Pty Ltd's Confidential Information in its possession or control.
e) The provisions of this clause 18 do not extend to any information which is:
i) at the time of disclosure, rightfully known to or in the possession or control of Customer and which is not subject to an obligation or confidentiality;
ii) public knowledge {otherwise than as a result of a breach of this clause 18 or my other obligation of confidentiality);
iii) approved in writing by an authorised officer of e-lusion Pty Ltd to be disclosed; or
iv) required to be disclosed by a government authority or by relevant laws provided that notice of any such required disclosure is first given to e-lusion Pty Ltd.
19) General
a) e-lusion Pty Ltd may amend these Terms at any time by posting a notice on e-lusion Pty Ltd's public website. By continuing to place orders for Products or use web hosting services, Customer will be deemed to have accepted the revised Terms.
b) Any provision of these Terms which is invalid or unenforceable will be read down to the extent necessary, and the remaining provisions will continue unaffected.
c) Customer acknowledges that some Products may be controlled under export laws in force at the time of the Sales Contract Customer shall not export, re-export, or distribute products, in violation of any such export control laws or regulations,
d) Customer acknowledges that certain Products may be subject to license requirements or other restrictions specific to certain transactions. Whom applicable, Customer agrees to be bound by any such terms and conditions and/or restrictions and shall indemnify e-lusion Pty Ltd for any liability suffered by it arising from Customer's breach.
e) Customer may not assign or attempt to assign any of its rights and obligations under these Terms. These Terms are governed by the laws of the State of New South Wales and the Courts of the state of New South Wales shall have exclusive jurisdiction to hear any disputes arising from or relating to this agreement.
April 2007
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