Pacificomm Terms and Conditions of Supply to Wholesale Customers
1. Definitions and Interpretation
In these Terms and Conditions, the following definitions shall have the following meanings:
“Account” means a personal account created by You on the Website in order to purchase Products from the Website;
“CGA” means Competition and Consumer Act 2010;
“Confidential Information” means all information supplied by, on behalf of or concerning Pacificomm or its Suppliers and includes (without limit) business, technical, pricing and customer information;
“Order” means an order for Products placed on the Website;
“Password” means the password You have set in order to access Your Account;
”PPSA” means Personal Property Securities Act 2009;
“Products” means all communications related hardware and software supplied by Pacificomm to you but does not include accessories supplied to you directly by any third party;
“Suppliers” means Pacificomm’s suppliers;
“Website” means www.pacificomm.com.au.
1) Terms and Conditions constitute a legally binding contract between the customer (“You”) and Pacificomm Australia Limited (ABN 31 267 301 304) (“Pacificomm”) and apply to the ordering purchase, fulfilment and delivery of products (“Products”) from the Website for business purposes. By placing an order for Products from Pacificomm on the Website you agree to these Terms and Conditions. These Terms override and are in substitution for any terms stipulated or referred to in writing or orally by you.
1) If you do not already have an Account you will need to create one before placing an Order.
2) You may not set up an Account for someone else.
3) Please ensure that you enter all information correctly when creating an Account. You warrant to Pacificomm that all information provided by you in relation to your Account is complete, true and accurate.
4) You must notify Pacificomm immediately if you become aware of any actual or potential unauthorised use of your Password or Account.
5) Except to the extent otherwise required by law (including, without limitation, the Competition and Consumer Act 2010 (“CCA”)), Pacificomm will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of: (i) your Account information being incomplete or inaccurate; or (ii) any unauthorised use of your Password or Account which takes place before you notify Pacificomm ,whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
6) If Pacificomm suffers any loss, damage, cost or expense as a result of any unauthorised use of your Password or Account which takes place before you notify Pacificomm then you must pay Pacificomm the amount of that loss, damage, cost or expense if Pacificomm asks you to.
1) Notwithstanding anything in these Terms and Conditions or any other agreement between you and Pacificomm, all orders are subject to the acceptance of Pacificomm and no order will be deemed to be accepted by Pacificomm until such acceptance is communicated to you.
2) In addition to any other information Pacificomm thinks relevant, in deciding whether to accept an order placed by you, Pacificomm may have regard to:
(a) Your account with Pacificomm;
(b) Your credit status; and
(c) any previous dealings between Pacificomm and you.
Pacificomm reserves the right to delay or cancel any order at any time (including at the time of fulfillment) based on the above.
3) You may print a hard copy of an order placed on the Website. The presentation of an order confirmation indicates only that Pacificomm has received the order.
4) If you wish to cancel an order it must do so by telephoning a Pacificomm customer sales representative, accounts manager or other authorised person and quote the order number. Orders may not be cancelled after 60 minutes of order placement or if the Products have left Pacificomm's storage facilities.
5) Orders for Products not ordinarily stocked by Pacificomm are irrevocable.
1) All prices and products displayed on this Website and offered by Pacificomm are subject to change without notice. It is your responsibility to check the price of a Product before placing an order for it.
2) In addition to the price for the Products, you will also need to pay the advertised delivery charge (if any) (“Delivery Charge”). Any Delivery Charge will appear in your shopping cart.
3) If Pacificomm agrees to deliver Products outside of Australia, international delivery charges will apply (“International Delivery Charges”). International Delivery Charges, applicable to your relevant country, will appear in your shopping cart.
4) By placing an Order you agree to pay the price for the Products, any Delivery Charge, any Additional Delivery Charge and any International Delivery Charge.
5) All prices and Delivery Charges, Additional Delivery Charges and International Delivery Charges quoted are in Australian dollars and are exclusive of GST.
1) Unless Pacificomm has agreed to extend credit to you, payment is to be made in cash before supply. Payment by cheque or by any type of bank transfer will not be considered payment until the payment has been fully cleared through the banking system into Pacificomm’s bank account.
2) Pacificomm will extend credit to you to the credit limit set out in your credit application. Pacificomm may vary the credit limit or cancel credit from time to time. If Pacificomm extends further credit beyond the credit limit you may be required to execute further documentation.
3) Pacificomm may at any time or from time to time without assigning any reason therefore refuse to extend any further credit or require further guarantees.
4) Where Pacificomm has agreed in writing to extend credit to you, payment is to be made by the 20th of the month following the dispatch of an invoice.
5) You agree to pay for the Products in full without deduction or set-off and to pay goods and services tax and any other government duties, levies or taxes in respect of the Products.
6) If payment is not made in full by the due date, Pacificomm may cease delivery of Products and any incidental services and charge you interest on the unpaid overdue balance at the rate either 15% per annum or at the rate charged by ANZ Bank Limited on overdrawn bank accounts, in every case at Pacificomm’s sole discretion.
7) Notwithstanding clauses 6.2 and 6.4 above, all payments shall immediately become due to Pacificomm and Pacificomm may immediately terminate your account and this contract if you refuse to accept delivery of any Products, become insolvent, commit any act of bankruptcy, or if a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking, or if you make or attempt to make an arrangement or composition with creditors or if Pacificomm believes on reasonable grounds that you cannot pay for the Products.
1) Risk in the Products passes to you from the time of delivery. You shall insure the goods for their full insurable value against loss or damage by fire, theft, accident and other such risk.
2) Delivery to a courier constitutes delivery to you. All claims for shortage or damage during delivery must be made to both the carrier and immediately and be the latest within 48 hours of the date of delivery.
3) Pacificomm will make every effort to ensure delivery of products, or performance of services, is on time but will not be liable to you for any loss or damage arising in any way from any delay in delivery or performance. Delay in delivery or performance shall not entitle you to cancel any order.
4) Pacificomm will, if requested by you, deliver the Products directly to your customer; however, you shall still remain responsible pursuant to 7.1, 7.2 and 7.3 above.
1) Notwithstanding any period of credit, ownership of products remains with Pacificomm and will not pass to you until those Products supplied to you have been paid for in full and until that time you agree that:
(a) You hold the Products as bailee for, and you are in a fiduciary relationship with, Pacificomm;
(b) You must store the Products so that they can be readily identified as belonging to Pacificomm; and
(c) You are authorised by Pacificomm to dispose of the Products in the ordinary course of business, but only as Pacificomm’s agent, and you must keep the proceeds of any products sold in a separate account in trust for Pacificomm. Furthermore, you must not represent to any third party that you are in any way acting for Pacificomm, and Pacificomm is not bound by any contract between you and any third party.
2) If you fail to pay for any Products in full by the due payment date, Pacificomm or its agent(s) may (in addition to its other rights) enter your premises (or other premises to which you have access and where any of the Products are stored) during normal business hours, without notice, and search for and recover its Products, and may resell any of them, without incurring any liability to you or any other person. Furthermore, you indemnify Pacificomm against all costs and claims in respect of its exercise or rights under this clause 8.
9. Personal Property Securities, Act 2009 (“PPSA”)
1) Terms create a security interest in all present and after-acquired Products as security for all your obligations to Pacificomm, which is or will be registrable in the Register of Personal Property Securities.
2) You must do all such things and execute or arrange for execution of all such documents as Pacificomm may require to ensure that, Pacificomm has a perfected first ranking security interest(s) in the Products under the PPSA.
3) Pacificomm may register a financing statement to perfect its security interest in the Products delivered, or, to be delivered, to you.
4) will indemnify Pacificomm for any costs Pacificomm incurs in doing any of the above.
5) You waive your right to receive a copy of any verification statement(s) under the PPSA and agree that as between Pacificomm and you:
6) You waive your rights to receive a notice under sections 95, 118, 121, 130, 132, and 135 of the PPSA; and
7) Where Pacificomm has rights in addition to those in Chapter 4 of the PPSA, those rights shall continue to apply.
8) addition to any other obligation, you will indemnify Pacificomm for any costs Pacificomm incurs in registering or maintaining, and/or enforcing or attempting to enforce the security interest created by these Terms.
9) Immediately upon request by Pacificomm, you must procure from any person considered by Pacificomm to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Pacificomm may at any time require.
10)You will immediately notify Pacificomm of any change in your name or any of the details you provided as part of your credit application.
1) The provisions of the CCA shall not apply to any supply of Products or incidental services to you where you acquire or hold yourself out as acquiring those Products and incidental services for the purposes of a business, and the conditions, warranties and guarantees set out in the relevant Sale of Goods Act applicable in each State of Australia or implied by common law will not apply and are excluded from these Terms.
2) If there is any defect or irregularity in products supplied, Pacificomm’s liability to you is limited to replacing those Products. (However no such remedy will be given unless you have complied with clause 10.3 below). For the avoidance of doubt, Pacificomm shall have no obligation to provide refunds.
3) Any claim or dispute must be delivered to Pacificomm in writing within 48 hours of delivery of the Products, and must in any event be delivered before the Products have been altered in any way.
4) Subject to clause 10.2, Pacificomm will not be liable in any event for any loss or damages of any kind, whether direct, or special, or indirect or consequential, howsoever arising, whether or not Pacificomm had knowledge that such damages might be incurred, including but not limited to loss of income, profit, interest, opportunity, utility or loss of market, incurred by you or by any third party.
5) Nothing in these Terms shall exclude or restrict any rights or remedies you may have under the Competition and Consumer Act 2010.
1) Pacificomm is not obliged to accept the return of any Products for credit. Except where Pacificomm may determine (but without obligation to so determine), requests for Products to be returned for credit will be considered only if received in writing within 48 hours of the delivery of the Products and quoting the invoice number, and if the Products are in the same condition as dispatched. Pacificomm may grant or refuse any such requests at its sole discretion.
12. Obligations To Suppliers
1) Pacificomm may impose certain conditions on you from time to time due to such terms being imposed on Pacificomm by its Suppliers.
13. Your Further Obligations
1) You undertake in relation to Products acquired from Pacificomm:
(a) not to give any express guarantees on behalf of the manufacturer, any Supplier, or on behalf of Pacificomm, except with Pacificomm’s express written approval;
(b) not use Pacificomm’s Products for any purpose for which they are not suitable, and that you will (whenever appropriate) correctly advise your customers as to the purpose to which the Products should or should not be put;
(c) that any literature that you may supply and which relate to Pacificomm’s Products will comply with the CGA;
(d) to immediately notify Pacificomm in writing of any claim you may receive pursuant to the CGA, giving details of the Products concerned, and claimant’s contact information;
(e) if you supply the Products directly to an end user/consumer you will do so using terms and conditions of supply which exclude liability for any claims under the CCA, but in each case only where the end user/consumer acquires the Products for business purposes; and
(f) if your customer acquires the Products for resupply, you will ensure that your customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the CGA, but in each case only where the end user/consumer acquires the Products for business purposes.
1) You will indemnify Pacificomm against all costs (including legal costs on a solicitor and own client basis and collection costs incurred by Pacificomm or its agent) expenses, losses, damages or claims arising in any way where you have failed to comply with any one of these Terms, as modified from time to time.
15. Intellectual Property
1) All intellectual property shall remain the property of Pacificomm and any Supplier entitled thereto and neither Pacificomm nor its Suppliers transfer any right, title or interest in the intellectual property to you.
2) You shall not use any trade marks which are the property of Pacificomm or its Suppliers, or any similar words or marks, or any combination of words which includes any of those trademarks or any similar words or marks, except to the extent expressly authorised by Pacificomm in writing.
3) You agree to dispatch the Products only under the trademarks under which they are supplied by Pacificomm, and under no circumstances shall you apply any of the trademarks to any product which is not genuine branded product supplied to you by Pacificomm.
4) You will not cause or permit anything which may interfere with, damage or endanger the trademarks, other intellectual property rights of Pacificomm or Pacificomm’s Suppliers, or assist or allow others to do so.
5) You will undertake to advise Pacificomm immediately when you become aware of any unauthorised use or attempted use by any person of the trademarks or other intellectual property rights of Pacificomm or Pacificomm’s Suppliers.
6) In the case of your account with Pacificomm being terminated you shall immediately discontinue use of all of the trademarks which are the property of Pacificomm in any sign, or advertising and thereafter shall not use those trademarks directly or indirectly in connection with your business.
1) All Confidential Information shall at all times remain the property of Pacificomm and/or the Suppliers.
2) You agree with Pacificomm to keep all information and communications (both oral and written) given by, on behalf of, or concerning Pacificomm to you from time to time, strictly confidential.
3) You agree to use Confidential Information supplied to you only in connection with the carrying on of that part of your business relating to Products and in connection with the performance of your obligations under these Terms.
4) You agree to ensure that all Confidential Information given to you is made available to your employees only on the basis that those employees at all times maintain strict confidentiality.
17. Events Beyond Parties Control
1) Neither party will be liable for any losses of any kind or any delay in performing obligations under these Terms caused in whole or in part by any act of God, natural disaster, flood or earthquake, strike, lockout, fire, war, civil commotion, inability to obtain products or supplies including the imposition of any export or import bans, or any other cause beyond reasonable control. Neither party shall be required to settle a strike or lockout or other industrial disturbance against its wishes in order to benefit from this clause.
18. Your Information And Guarantee
1) You warrant that the information supplied by you in relation to the credit application and these Terms is true and correct and you acknowledge that Pacificomm will rely upon the correctness of the representations and information that you have provided and you further undertake to inform Pacificomm of any change in the information as soon as you are aware that such change will take place or at the latest, five working days after such change has occurred.
1) If any provision of these Terms is or becomes void or unenforceable, then those provisions will be severed from these Terms and replaced with provisions which validly accomplish (to the extent possible) those provisions’ objectives and in that case the rest of these Terms will remain valid and enforceable.
1) These Terms are governed by and shall be construed in accordance with the laws of Victoria, Australia and any dispute under them shall be subject to the non-exclusive jurisdiction of the Courts of the State of Victoria, Australia.