TERMS AND CONDITIONS OF SALE
CQ POINT OF SALE Pty Ltd
ABN 49 105 163 068
1.APPLICATION OF TERMS AND CONDITIONS
These terms and conditions apply to and govern all tenders, quotations, all orders placed with and all contracts entered into by the Supplier whereby goods are supplied provided and/or delivered ("supply" or "supplied") by the Supplier ("agreement").
The agreement may only be varied with the Supplier's prior written consent.
To the extent that there is any conflict between the Terms and Conditions of Sale or as they may be varied in accordance with this clause and any other documentation or correspondence forming part of the agreement including an order, these Terms and Conditions of Sale or as varied in accordance with this clause, shall prevail.
Any order or offer made by any person to the Supplier, shall not be binding on the Supplier until accepted by the Supplier in writing.
Any tender or quotations submitted by the Supplier may at any time prior to its acceptance of an offer by the Supplier in respect of the said supply be withdrawn or varied by the Supplier.
The acceptance by a Purchaser of a supply by the Supplier of goods, the subject of such order, shall constitute acceptance by the Purchaser of the supply of such goods solely on the Terms and Conditions of Sale as set out in this document. These Terms and Conditions of Sale shall replace any previous terms and conditions of sale published, issued or used by the Supplier.
Any price as quoted by the Supplier for the supply of goods include, subject to the terms of these conditions of sale, cost of transportation to the agreed place of delivery.
Any additions or increases in the cost of supply as a result of any additions or increases in charges, taxes (including the rate of GST) or costs associated with manufacture or supply between the date of the quotation or tender or where there is no such quotation or tender, from the date of the Supplier's acceptance of the Purchaser's order as the case may be shall be borne by the Purchaser.
The price as quoted by the Supplier for the supply of goods excludes goods and services tax and the Purchaser must also pay to the Supplier an additional amount in respect of GST.
The Purchaser shall be invoiced at the time of delivery and the Purchaser shall pay any invoice within thirty (30) days ( or as otherwise stated on the invoice, or in accordance with written agreements between the Supplier & the Purchaser. ) of the date of the invoice and will pay interest 23.00% p.a. on overdue invoices. Any breach of Terms & Conditions, or other written agreements between the Supplier & the Purchaser may result in a demand for full & immediate payment of all outstanding invoices.
A late payment fee of $50 per period (as stated in Terms on the invoices) may also apply. This is at the discretion of CQ Point of Sale Pty Ltd.
Unless otherwise agreed, where the Purchaser has nominated an address to the Supplier, the Supplier shall deliver the goods to the nominated address and where the goods are delivered to that nominated address, the Supplier shall be deemed to have so delivered the goods if it obtains a receipt or signed delivery docket for the goods from the person at that address.
If the nominated address is unattended or delivery cannot otherwise be effected, the Supplier in its sole discretion, may store the goods at the Purchaser's risk and expense. The risk of loss or damage to the goods shall pass to the person at the time of delivery or when the Purchaser is notified that the goods are available for dispatch or as the case may be.
The Supplier reserves the right to refuse to deliver goods under an agreement if the Purchaser is in default of its payment obligations under any one or more other agreements and the Supplier shall not incur any liability of any nature whatsoever including negligence due to any failure on its part to supply goods by an agreed date.
Notwithstanding the Purchaser has possession of the goods, the title of the goods remains with the Supplier and no legal or equitable interest or property in the goods whatsoever will pass to the Purchaser, until the full amount for the goods has been paid and there is no money owing by the Purchaser to the Supplier for any other goods delivered by the Supplier or on any account whatsoever. Until title and property in the goods passes, the Purchaser must hold the goods as bailee for the Supplier, mark the goods or store them separately and keep all necessary records so that the goods can at all times be identified and distinguished as the property of the Supplier and refrain from mixing or intermingling the goods with any goods owned by the Purchaser or by any other person. Where title and property in any particular goods has not passed, the Purchaser may nevertheless dispose of those goods to a bona fide sub-purchaser ("sub-purchaser") provided that such disposal are in the ordinary course of the Purchaser's business and no event as specified in clause 10 (a) has occurred. The Purchaser must not deal with those goods if both conditions are not met. It is agreed that by the disposal of such goods, the Purchaser assigns to the Supplier (the assignment being absolute and not by way of security) all monetary proceeds received by or on behalf of the Purchaser in respect of the goods.
The Purchaser must observe the following fiduciary obligations with respect to any disposal of goods to a sub-purchaser authorised by clause 8(b), the Purchaser must maintain records of all disposals of the goods and must permit inspection of these records by the Supplier promptly upon request and the Purchaser must hold the assigned proceeds on trust for the Supplier and separate from its own monies and must account to the Supplier for those proceeds. The total debts owing by the Purchaser to the Supplier will be reduced by the proceeds of sale for which the Purchaser has accounted to the Supplier in accordance with this clause 8(c). If these proceeds exceed the total debts owing by the Purchaser to the Supplier at any time, the Purchaser is entitled to receive an amount equivalent to the amount of this excess as commission.
If the Purchaser produces a product ("the Product") that utilises or incorporates any of the goods as a component of the Product, the terms of this clause 8(d) pertaining to title and proceeds apply in the following manner in the case of goods that cannot be removed from the Product without destroying or seriously injuring the goods or other components of the Product, the terms of this clause 8 apply subject to the modification that the Supplier becomes a co-owner of the Product at the time the relevant goods are incorporate into the Product and the Supplier's co-ownership share being in the proportion that the value of the goods bears to the value of the other components of the Product. The terms of this clause 8 apply subject to the references to the goods in clause 8 being read as references to the Supplier's co-ownership share of the Product. The Purchaser indemnifies the Supplier against any claim, action, damage, loss, liability, cost, expense, outgoing or payment which the Supplier suffers, incurs or is liable for in respect of the Supplier's exercise of its rights under this clause 8.
If the Customer has not paid for Goods when payment falls due, or is breach of any Terms & Conditions ( as part of this document or any other signed agreements ), the Supplier may at any time thereafter enter the Customer's premises where those Goods are or are reasonably suspected of being situated, without liability for trespass or any resulting damage, and retake possession of those goods using reasonable force to do so.
No claim in relation to damaged goods or shortage of volume, length, quantity or weight may be made unless such claim is made by the Purchaser in writing to the Supplier with seven (7) days of delivery of the goods to the Purchaser.
The Supplier's only liability for any such loss or damage shall be, in its sole discretion, to replace or repair goods lost or damaged or pay for such goods to be placed or repaired. Goods may only be returned for credit upon the written agreement of the Supplier and in any event after the expiration of the earlier of a reasonable time after the Purchaser has had a reasonable opportunity to inspect the goods and 60 days from the date of original invoice. In all cases the original invoice or delivery docket must be quoted and return freight must be pre-paid by the Purchaser. Goods specifically ordered by the Supplier for the Purchaser will not be accepted for credit. The Supplier reserves the right to charge a restocking fee on goods accepted for credit. All goods returned for credit must be in their original pack and in completely re-saleable condition. The Supplier reserves the right to impose special conditions of the return of cable.
The goods shall be warranted by the Supplier only to the extent that they are warranted by the Supplier or manufacturer of them and the Supplier is able to pass on the benefit of such warranty to the Purchaser. Warranty work is only to be carried out by persons authorised by the Supplier. Any work whatsoever performed by persons not authorised by the Supplier may void the warranty.
8.LIMITATION OF LIABILITY
Subject only to clauses 5.6 and 7(d) and notwithstanding any other provision of this or any agreement or otherwise, if any liability on the part of the Supplier arises to or in favour of the Purchaser (whether in contract, tort or otherwise) for any loss, damage, harm or injury arising out of or in any way connected with the supply of or failure in the provision of or the purported supply of goods by the Supplier. The Supplier's liability for all such loss, damage, harm or injury in all and any circumstances shall be limited in aggregate to the payment by the Supplier of a sum not exceeding 5% of the monies payable to the Supplier pursuant to the relevant agreement.
Any Purchaser of goods from the Supplier agrees to release, hold harmless and indemnify the Supplier from and against all liabilities, claims, damages, losses, costs and expenses of whatsoever nature and howsoever occurring including without limitation loss of market, loss of profit, loss of use, loss of production or for any financial or economic loss including indirect or consequential loss or damage which may be suffered by the Purchaser or by any third party arising out of or in any way connected with the supply of the goods to negligence.
Except as otherwise expressly provided in these conditions and subject to clause 7(d), all statements, representations, provisions, conditions, promises, undertakings, covenants and other provisions, express or implied (and whether implied by law or otherwise) relating to any quotations or tenders submitted by the Supplier, orders accepted by the Supplier goods (whether as to their quality or merchantability, fitness for any purpose, correspondence with any description or sample or otherwise) and/or services or their supply, being provisions which might otherwise form part of these terms and conditions of sale or any agreement or be collateral to form part of any agreement that is collateral to these terms and conditions of sale or any agreement, are hereby excluded in their entirety and are of no effect whatsoever.
These terms and conditions of sale do not, and no provision of these terms and conditions of sale will or purports to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of goods and/or services of any provision of the Trade Practices Act, 1974 ("TPA").
Where the Supplier is permitted under the TPA to limit its liability for breach of a condition or warranty that is implied by the TPA, the Supplier's liability shall be limited at the Supplier's sole discretion to the replacement of the goods or the supply of equivalent goods or the repair of the goods or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired. To the full extent permitted by law, the purchaser acknowledges that it relies on its own skill and judgment in relation to goods supplied to it by the Supplier and the Supplier shall be under no liability for any unsuitability for any purpose of the goods irrespective of any knowledge which it may possess as to the purpose for which the goods were required by the Purchaser unless that purpose has been specifically notified to the Supplier in writing prior to the formation of the relevant agreement.
9.DRAWINGS, DOCUMENTATION AND INFORMATION
Any descriptive and shipping specifications, illustrations, drawings, data, dimensions and weights, either submitted by the Supplier with a quotation or tender or otherwise provided by the Supplier to the purchaser, are illustrative and approximate only and do not form part of any agreement entered into between the Supplier and the Purchaser unless expressly agreed in writing by the Supplier. Any drawings or other documents submitted and any information supplied by the Supplier to the Purchaser remains the property of the Supplier and constitutes confidential information of the Supplier (to the extent that it is not in the public domain) and the Purchaser shall keep all such confidential information confidential and shall not use such drawings, documents and information for any purpose other than that stipulated by the Supplier nor provide the same to third parties.
The Supplier may terminate any agreement without notice if the Purchaser is in breach of any term of the Agreement and fails to remedy the breach within 14 days of notice in writing by the Supplier specifying the breach and requiring the Purchaser to remedy it, has failed or refused to take delivery of goods the subject of the agreement and such failure or refusal continues for a period of 14 days after the Supplier has notified the Purchaser that it is ready, willing and able to supply such services or is declared bankrupt resolves to go into liquidation or has a petition for bankruptcy or winding up presented against it or enters into a scheme of arrangement with its creditors or if any liquidator, provisional liquidator, administrator, receiver, receiver and manager or official manager is appointed in respect of the Purchaser or if anything analogous occurs in respect of the Purchaser.
In the event of such termination the Supplier shall, after taking into account payments made by the Purchaser to the Supplier, be entitled to be paid by the Purchaser for work done and expenditure made under the agreement up to and including the date of termination and any direct and indirect loss suffered by the Supplier including without limitation the Supplier's loss of profit on the agreement and the legal costs of the Supplier (on a full indemnity basis) incurred in relation to the termination and any prior breach and in exercising any rights and remedies as a consequence of the termination and any prior breach. Termination of the agreement pursuant to this clause 10 shall be without prejudice to the rights of the Supplier accruing up to the date of termination.
The supply of goods to the Purchaser does not constitute a transfer of any intellectual property rights in the goods or any part thereof. The Purchaser shall not do anything inconsistent with or in infringement of such intellectual property rights including but not limited to the decompilation, disassembly and re-engineering thereof. The Supplier does not warrant that the supply by it and the use by the Purchaser of the goods or services does not and will not infringe the intellectual property rights of any third party whether such rights take the form of letters, patent, registered designs, copyright, trade mark rights, or any other similar right.
12.THE SUPPLIER'S OBLIGATIONS
Notwithstanding any other provision of these terms and conditions of sale if the Purchaser breaches a term of an agreement, the Supplier shall not be bound to perform its obligations under that agreement until the breach is remedied by the Purchaser.
Should the Supplier be delayed, hindered, or otherwise prevented from complying with the terms of this agreement by reason of events or circumstances beyond the reasonable control of the Supplier including but not limited to Acts of God, wars, riots, strikes, lockouts, trade disputes or labour disturbances, breakdown of plant or machinery, accident, storm, fire, flood, difficulties in obtaining materials, transport or labour or any other circumstances affecting the supply of goods or services, the Supplier shall not be liable to the Purchaser for any loss or damage which may be suffered by the Purchaser whether as a direct or indirect result of any such occurrences.
14. RETURN OF GOODS
Should the Customer wish to return goods or cancel an order, acceptance of the return of goods or cancellation of the order, especially when goods ordered specifically for the Customer ( ie. Non-stock items ) are concerned, is entirely at the Supplier's discretion. Such returns or cancellation may be subject to a re-stocking fee of 25% of the quoted price of the goods.
15. ACCOUNT SERVICE FEE
CQ Point of Sale Pty Ltd reserves the right to charge an Monthly Account Service Fee. Application of the Account Service Fee shall be the discretion of CQ Point of Sale Pty Ltd. The current charge for Account Service Fee is $22 per month ( as of 1st October 2008 ).
These Terms & Conditions may be varied at any time without notice at the discretion of CQ Point of Sale Pty Ltd.
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