These terms and conditions of business, as amended from time to time and made available at www.neweraed.com.au/legal (Terms and Conditions) apply to any supply of goods and/or services by Editure Limited ABN 34 009 615 801 or Editure Technology Pty Ltd ABN 24 068 136 274 trading as New Era (New Era) to you (Client).
The application of these Terms and Conditions will commence on the date on which the Client first request provision of goods and/or services from New Era, and shall continue until terminated in accordance with these Terms and Conditions.
Orders and Payment
New Era shall provide the specified goods and/or services to the Client.
Where a written quotation or statement of work (Quotation) has been given by New Era, the selling price is the price specified in the Quotation. In any other case, New Era’s selling price is the price specified in the price list as at the date of dispatch. New Era may at any time change its price list to reflect, among other things, changes in exchange rates or the imposition of any duties, levies or other taxes and the Client is bound by those changes. New Era may charge a reasonable handling fee for all orders delivered to the Client.
The price for any variations to the work set out in Quotation must be agreed in writing, If agreement cannot be reached, the price for the variation shall be calculated on the same basis as that set out in the Quotation.
Once an order has been accepted by New Era, it cannot be cancelled by the Client. The supply of goods and/or services is subject to availability. New Era reserves the right to suspend or discontinue the supply of goods and/or services to the Client. If New Era is unable to supply all of the Client’s order, these Terms and Conditions continue to apply to any part of the order supplied.
Payment shall be made by the Client to New Era before the delivery of goods and/or the performance of the services, except where the Client has executed a credit application that has been accepted by New Era in writing. In that case, the Client agrees to pay New Era the goods and services fees in accordance with New Era’s invoice or credit application, without deduction, within the time period specified on the invoice or the credit application.
New Era’s standard payment terms are 30 days from full delivery of goods and/or full performance of the services to the Client, unless otherwise agreed in writing.
If any part of an invoice is in dispute, the balance will remain payable and must be paid when due. The Client has no right to set-off any claim against New Era from moneys owing to New Era.
If the Client does not make payment by the due date, exceeds its credit limit at any time, commits a material breach of these Terms and Conditions or an insolvency event in respect of the Client arises or is reasonably suspected by New Era, New Era may (without limiting any other right or claim it may have against the Client) do any or all of the following:
- charge the Client interest calculated on a daily basis on any portion of the Client’s account that is overdue at the rate of 1.5% per month, compounding monthly, calculated from the date the payment was due until any payment is made (both dates inclusive);
- vary or withdraw any approved credit limit and/or terms of trade;
- cancel or suspend any unfilled orders or cease providing any services;
- terminate any contracts between New Era and the Client and demand immediate payment of any moneys due and outstanding under those contracts;
- cancel any rebate, discount or allowance due or payable by New Era as at the date of the event;
- enter (at any time) any premises in which New Era’s goods are stored, to enable New Era to inspect the goods and reclaim possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Client whatsoever; or
- institute any recovery process as New Era in its discretion decided at the Client’s cost and expense.
Return of goods to New Era
To the extent permitted by law, no claim for return of goods will be recognised by New Era unless received by New Era within 5 days of Client receipt of goods and unless expressly allowed otherwise by New Era. Goods procured to Client instructions or specifications are non-returnable and opened goods are non-returnable.
The Client shall reimburse to New Era all expenses incurred by New Era in providing goods and/or services including, but not limited to travel expenses, accommodation expenses, parts and other consumables. New Era shall first obtain the written consent of the Client to incur the cost.
Unless stated otherwise, if a Taxable Supply is made under these Terms and Conditions the party which made the supply (the ‘Supplying Party’) may in addition to the amount payable under these Terms and Conditions recover from the other party (the ‘Receiving Party’) an additional amount on account of GST, calculated by multiplying the amount payable by the GST Rate.
Where a Taxable Supply is made under these Terms and Conditions the Supplying Party shall issue to the Receiving Party a Tax Invoice or an Adjustment Note, as applicable, in accordance with the GST Law.
In these Terms and Conditions, “GST”, “GST Law”, “GST Rate”, “Taxable Supply”, “Tax Invoice” and “Adjustment Note” have the meanings given in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Right of Entry
The Client agrees to provide New Era and its personnel access to the Client’s premises and such information and equipment as is reasonably necessary to enable New Era to provide the goods and/or perform the services.
Confidentiality and Intellectual Property
The Client and its employees and agents shall not disclose or permit to be disclosed to any third party any confidential information of New Era, except as permitted by New Era in writing or as required by law.
The intellectual property rights in all intellectual property owned by New Era at the commencement of the application of these Terms and Conditions remains the property of New Era. The intellectual property rights in all intellectual property developed by New Era, in providing the goods and/or performing the services to the Client shall become and remain the property of New Era unless expressly agreed otherwise in writing. All intellectual property rights in data, information, materials utilized by New Era in providing the goods and/or services, including, without limitation, all software, tools, know-how, methodologies, equipment or processes, shall remain New Era’s sole and exclusive property.
The Client shall not, without the written approval of New Era, disclose to any third party (other than their legal advisers, or otherwise as required by law) these Terms and Conditions.
The Client indemnifies New Era against all expenses (including without limitation legal expenses) damages, losses and costs incurred or suffered by New Era arising directly or indirectly as a result of any injury or death to any person, any breach of any provision of these Terms and Conditions, or negligent act or omission, or wilful misconduct of the Client.
Limitation of Liability
To the fullest extent permitted by law, New Era excludes all warranties, guarantees and conditions, whether arising in contract, negligence or otherwise arising out of or in connection with the supply of goods and/or services. To the extent that any warranty, guarantee or condition cannot be excluded, New Era limits its liabilities for a breach of an express or implied term, condition, guarantee or warranty to one of the following at the option of New Era:
- in the case of provision of goods to the: (i) replacement of the goods; (ii) repair of the goods; (iii) cost of replacing the goods; or (iv) cost of repairing the goods; and
- in the case of performance of services to the: (i) supplying of the services again; or (ii) cost of supplying the services again.
To the extent permitted by law, New Era excludes all liability for any indirect or consequential expenses, losses, damages or costs incurred by or awarded against the Client arising in any way out of or in relation to the supply of goods and/or services (even if due to the negligence of New Era).
New Era may by written notice to the Client, terminate these Terms and Conditions immediately if the Client:
- commits a breach of a provisions of these Terms and Conditions and fails to remedy, within fourteen (14) days of receiving a written notice to do so; or
- becomes subject to any form of insolvency administration or winding up.
On termination of these Terms and Conditions the Client agrees to make payment to New Era for all services performed and goods provided up to the date of termination.
During the application of these Terms and Conditions and for a period of six (6) months following termination of these Terms and Conditions the Client will not attempt to induce or solicit any employee, contractor or agent to leave the employment of New Era.
Retention of Title and Personal Property
All goods provided to the Client from New Era remain the property of New Era, notwithstanding delivery to the Client, until payment in full for those goods is received by New Era.
All risk in goods provided to the Client shall pass to the Client on delivery.
The Client acknowledges and agrees that by assenting to these Terms and Conditions, the Client grants a security interest (by virtue of this clause) to New Era in all goods supplied by New Era to the Client (if any) and all other goods that will be supplied in the future by New Era to the Client (or to its account) during the continuance of the relationship between New Era and the Client.
The Client will do such acts and provide such information (which information the Client warrants to be complete, accurate and up to date in all respects) as in the opinion of New Era (acting in its absolute discretion) may be necessary or desirable to enable New Era to perfect under the Personal Property Securities Act (PPSA) the security interest created.
The Client waives any right to receive a copy of a verification statement under the PPSA and agrees, to the extent permitted by law, that as between New Era and the Client contract out of section 115 of the PPSA, except section 115(g) in relation New Era’s right to seize collateral, and the Client agrees to waive its rights referred to in sections 115(1).
The Client must pay the costs, charges and expenses of and incidental to the need for, or desirability of registration of, a financing statement or financing change statement or any action taken by New Era to comply with the PPSA or to protect its position under the PPSA. The Client must pay any costs incurred by New Era, including legal costs on a solicitor-own client basis, arising from any disputes or negotiations with third parties claiming an interest in any goods supplied by New Era.
A party will not be liable for any failure or delay in the performance of its obligations under these Terms and Conditions if that failure or delay is due to force majeure, however, this clause does not apply to any Client obligation to pay money for goods provisioned or services performed by New Era prior to such force majeure event.
Event of Inconsistency
Unless expressly stated otherwise in New Era supplied documentation or as provided below (if any) should there be any inconsistency between the provisions of these Terms and Conditions and the provisions of the New Era supplied documentation, these Terms and Conditions shall prevail to the extent of that inconsistency.
Notwithstanding the above:
- in the event of an executed and current contract between the Client and New Era should there be any inconsistency between the provisions of these Terms and Conditions and the provisions of said executed and current contract, the executed and current contract shall prevail to the extent of that inconsistency.
- If indicated on the Quotation, the provisions of the Quotation shall prevail to the extent of any inconsistency between the Quotation and these Terms and Conditions.
- In the event the Client provides a purchase order, for purchase of goods and/or services from New Era, any terms on such purchase order that are in addition to or in contradiction of these Terms and Conditions shall be inapplicable and unenforceable, unless expressly agreed otherwise in writing by New Era.
The Client will not, without the prior written consent of New Era, assign or attempt to assign its rights or obligations under these Terms and Conditions.
These Terms and Conditions shall be interpreted in accordance with the laws of the State or Territory in the Commonwealth of Australia in which the goods and/or services are provided by New Era, and the parties agree to submit to the exclusive jurisdiction of the courts of that State or Territory in the Commonwealth of Australia.
The failure of New Era at any time to insist on performance by the Client of any obligation under these Terms and Conditions is not a waiver of New Era’s right to insist on the providing of, or to claim damages for breach of, that obligation unless New Era acknowledges in writing that the failure is a waiver; and any delay in exercising New Era’s right is not a waiver of that right or any other right including the right to insist on performance of that or any other obligation at any other time.
Any provision of these Terms and Conditions which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability without invalidating the remaining provisions of these Terms and Conditions.