These terms and conditions apply to the provision of any Third-Party Product provided to you by NRI Australia Limited (ABN 57 070 045 117) (“we” or “us” or “our”) in connection with this quotation or any resulting Order. Any variation to these terms and conditions must be in writing and signed by an authorised officer of NRI Australia Limited.

1. Scope, Product and/or Services

These terms and conditions are in addition to any terms and conditions that apply to a Third-Party Product which may be provided to you or made otherwise available on the applicable Third-Party Supplier’s website.

You are responsible for ensuring that the Third-Party Products ordered are suitable for its intended use by you and, we are not liable to you for any Third-Party Product you order which is unsuitable for your intended use.

2. Orders

All communications between you and us including all quotations must be in writing.

If we provide you with a quotation, it is valid only for the period specified in the quotation or 14 days, whichever is the lesser, and only in respect of the matters set out in the quotation (“Validity Period”). Pricing in the quotation is based on exchange rates applicable as at the date of the quotation, where fluctuations in exchange rates affect the pricing, in which case any revised pricing bill be notified to you before in takes effect.

If you wish to procure the Third-Party Products set out in a quotation, you must, within the Validity Period:

(a) notify us in writing of your acceptance of the quotation;
(b) return the relevant quotation to us duly signed by your authorised representative; or
(c) accept the quotation electronically through the online acceptance link, portal or other electronic approval mechanism provided by us in the quotation.

Upon your acceptance of the quotation by any of the methods described in paragraphs (a), (b) or (c), a binding contract for the provision of the Third-Party Products for the Fees set out in the quotation will be created (“Order”), whether or not we subsequently acknowledge receipt of that acceptance.

We, at our sole discretion, may within 30 days from receipt of your confirmation of the Order terminate the Order on 5 days written notice for convenience (without liability or compensation of any kind).

3. Conflict of Terms

The Order will be governed exclusively be these terms and conditions These terms and conditions override your terms and conditions, including any terms and conditions attached to any purchase order (even if issued after these terms and conditions). You acknowledge and agree any purchase order (and any terms and conditions attached to any purchase order) issued by you has no effect and is for administrative purposes only.

4. Price and Payment

You must pay to us the price, fees and charges for the Third-Party Products set out in the Order (“Fees”).

We will provide you with an invoice for the Fees on delivery of the products and/or services or otherwise as stated in the Order.

You must pay the Fees shown on each invoice within 30 days of the date of the invoice (“Due Date”), and in the manner we direct.

If you fail to pay the invoice by its Due Date you will be liable to pay a late payment fee equal to 1% of your unpaid invoice, charged monthly from the Due Date until the invoice is paid in full. You agree that this late payment fee is a genuine pre-estimate of the loss we would suffer if you do not pay for the Fees due under the invoice by the Due Date.

5. Taxes and Government Charges

The Fees are exclusive of all taxes, levies, duties, or other amounts levied, charged, or otherwise collected by any government authority in any jurisdiction including, without limitation, for example, any value-added, goods and services, sales, use, GST or withholding (“Taxes”). Taxes are payable in addition to the Fees for any Third-Party Products and must be paid by you at the same time as you pay for the Third-Party Products. We will give you a tax invoice compliant with the Law. You agree to reimburse and hold us harmless from any deficiency caused by you (including penalties and interest) relating to taxes that are your responsibility.

6. Delivery

Delivery takes place on the earlier of the time the Third-Party Product passes to you or your agent’s exclusive physical control, when you collect the Thrid-Party Product or arrange for the collection from us of the Third-Party Product.

We will, acting reasonably, be entitled to cancel Orders without notice if delivery of the Order cannot be taken within 48 hours of placing the order, unless otherwise agreed by us. Our Fees are exclusive of delivery costs.

The Third-Party Product will be delivered direct to the delivery address described in the Order. All delivery charges are in addition to the Fees set out in the Order.

Any date for delivery of our product indicated by us is an estimated date for delivery only. We are under no liability for any loss or damage, however it arises as a result of delayed delivery, and you may not treat the relevant Order or these terms and conditions as terminated, if the Third-Party Product is not delivered by that date.

We may charge you storage, handling and re-delivery fees if you are unable to take delivery of the Third- Party Products at the time we deliver our the products to you.

7. Risk

Risk of loss or damage to the Third-Party Products passes to you on delivery. Where the Third-Party Products comprises hardware, title to the hardware (not any software) passes to you on payment in full of the Fees.

8. Third-Party Products and Services

You agree that the terms of use for any Third-Party Products shall exclusively be set out by the applicable Third-Party Supplier. While we may provide a facilitation role (and nothing more than that), you agree that we are not responsible, nor liable, for any Third-Party Products.

Notwithstanding anything else, your licence to use any Third-Party Products is provided by the Third-Party Supplier and not us, and is subject to any terms and conditions as made available by the Third-Party Supplier, including, but not limited to, licenses, policies, warranties, ownership of intellectual property, privacy, scope of permitted use and other documentation. You will ensure that any End Users are aware of any end user licence agreements which relate to the products and/or services provided under this agreement.

We make no representation or commitment, and shall have no liability or obligation whatsoever, in relation to the content or use of, or correspondence or contract you have with, any such Third-Party Products, or any transactions completed, and any contract entered into by you with such third party. You acknowledge that we are not an employee, franchisee, partner or joint venture of Third-Party Suppliers.

We do not endorse or approve any Third-Party Products. It is your sole responsibility to determine that specific products and/or services, introduced or used by you meets the needs of your business and/or are suitable for the purposes for which they are used.

You acknowledge that Third-Party Suppliers are entitled, as a Third-Party beneficiary of these terms and conditions, with the authority to independently enforce its own provisions insofar as it relates to the Third-Party Products and / or impacts the Third-Party Supplier.

9. Assignment

You must not assign any rights or benefits under these terms and conditions or Order unless you have obtained our prior written consent. We may assign our rights and benefits under these terms and conditions and Order at any time without notice.

10. Force Majeure

We will be excused from performing our obligations under an Order due to a Force Majeure Event. If Force Majeure Event continues for a period of more than thirty (30) days, we may terminate the relevant Order immediately by giving you written notice.

11. Indemnity

You must defend, indemnify and hold harmless us and our Third-Party Suppliers against any claims, demands, suits, damages, losses, liabilities, fines, penalties, judgments or costs or whatsoever nature (including reasonable legal fees) arising out of or connected with a breach of these terms and conditions; a violation of any applicable Law including but not limited to import or export laws; asserted of actual infringement of any intellectual property rights; personal injury, death or property damage; unlawful, unfair or deceptive trade practice and any other acts or omissions by you or your contractors, subject to our gross negligence, fraud, criminal conduct or wilful misconduct under these terms and conditions.

12. Limitation of liability

To the maximum extent permitted by law and despite any other provision, our maximum cumulative aggregate liability to you arising directly or indirectly out of or in connection with a quotation and/or Order for the Third-Party Products provided in connection with the quotation and/or Order for any loss or damage, whether arising under contract, tort (including without limitation negligence), indemnity, statute, equity or otherwise, will not exceed the amount of $100,000. To the maximum extent permitted by law and despite any other provision, we will not be liable to you for any incidental, indirect, special, exemplary, punitive or consequential loss or damage or for any loss of revenue or loss of profits, loss of use, loss of business, loss of production, loss of product, loss of contract, loss of data, loss of prospective profits, loss of reputation arising directly or indirectly out of or in connection with a quotation and/or Order or the Third-Party Products, whether such liability arises under contract, tort (including without limitation negligence), indemnity, statute, equity or otherwise, even if you advise us of any special circumstances or such loss was reasonably foreseeable.

These terms and conditions are also subject to your rights under the Australian Consumer Law (“ACL”) as applicable to you. Nothing in these terms and conditions excludes, restricts or modifies any condition, warranty, right or remedy conferred on you by the ACL or any other applicable Law that cannot be excluded, restricted or modified by agreement.

Subject to those rights that cannot be excluded under the ACL, our liability (and any Third-Party Supplier’s liability) for a breach of a non-excludable condition or warranty is limited, at our sole option, to:

a. in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods; the repair of the goods; 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; or

b. in the case of services, any one of the supplying of the services again; or the payment of the cost of having the services supplied again.

Subject to the foregoing, to the full extent permitted by law all other express or implied warranties or guarantees (statutory or otherwise) are excluded.

Warranties do not apply, and shall be void, to the extent that any defect or failure in the Third-Party Product arises from or is attributable to use of the Third-Party Product other than in accordance with the manufacturer’s specifications, instructions, or documentation, including (without limitation) improper installation, modification, unauthorised repair, misuse, neglect, or operation outside the recommended environmental or operating conditions.

13. Your Relationship with Us

Nothing in these terms and conditions creates any relationship of employment, agency or partnership between you and us.

14. Intellectual Property

You agree to protect the intellectual property rights of the Third-Party Products and cooperate with us and our Third-Party Suppliers in their efforts to protect their intellectual property rights. You must notify us of any suspected or known breach or breaches of intellectual property rights as soon as is practicably possible after becoming aware of the breach or breaches. You must provide us or the Third-Party Supplier (as applicable) control of any proceedings and provide us or the Third-Party Supplier with all reasonable assistance in the defence of any claim the products infringe any third party intellectual property or other rights. These terms and conditions do not give you any intellectual property rights in the products

We are not liable for any infringement or unauthorised use of any intellectual property rights (including those of a vendor) arising from these terms and conditions. If any dispute or claim is made in respect of any infringement or unauthorised use of intellectual property rights we may terminate these terms and conditions by notice to you and without liability to you or any other person.

In these terms and conditions, intellectual property rights include the full benefit of any rights in any copyright, trademark, registered design, patent, trade and business names, know-how, inventions, improvements, discoveries and confidential processes and includes without limitation artistic works, images, illustrations and photographs and any adaptation or concept relating to it.

15. Governing Law and Disputes

These terms and conditions are governed by, and you agree to submit to, the laws applicable in the State of New South Wales, Australia. You submit to the non-exclusive jurisdiction of the courts of New South Wales.

In the case of a disagreement or a dispute arising on the interpretation or legal effect of the terms and conditions or an Order, the parties shall seek to resolve the disputes through discussion or negotiations. If the discussions or negotiations do not succeed within 21 days or any other period of time as agreed by the parties in writing, a party shall have the right to commence legal proceedings or have the issue(s) settled in court in accordance with the laws applicable in the State of New South Wales, Australia.

The fact that a dispute has been brought to discussions or negotiations, taken to a court or referred to arbitration does not in itself relieve the parties from fulfilling their obligations under these terms and conditions.

16. Whole Agreement

These terms and conditions form the entire agreement on which we are willing to trade with you with respect to the Third-Party Products and related subject matter, and supersede all or any previous or contemporaneous oral or written agreements or understandings (this is not intended to exclude liability for prior misrepresentations).

17. PMSI

You agree that these terms and conditions create a PMSI in the Third-Party Product (and their proceeds) supplied presently and in the future by us to you.

You agree to do all things necessary and execute all documents reasonably required by us to register the PMSI granted by you under these terms and conditions and to ensure that we acquire a perfected security interest in the product under the PPSA.

You will, upon demand, pay all of our expenses and legal costs (on a solicitor/agent/client basis) in relation to or in connection with the registration of the PMSI or any other security interest and all other costs associated with protection and enforcement of the PMSI or any other security interest created by these terms and conditions or by undertaking an audit under the provisions of the PPSA, or the repossession of the Product the subject of these terms and conditions or the exercise, enforcement or preservation of any right or interest under these terms and conditions or any contract that we have with you.

18. Export Control Laws and Sanctions 

a. Definitions

In this clause:

Export Control Laws and Sanctions  shall mean all applicable laws, regulations, rules, and sanctions relating to the export, re-export, transfer, or import of goods and/or services provided under this agreement, including but not limited to those administered and enforced by the Australian Government Department of Foreign Affairs and Trade, the Australian Border Force, the United Nations Security Council, the United States Department of Commerce (Bureau of Industry and Security), the United States Department of the Treasury (Office of Foreign Assets Control), the European Union, the United Kingdom, and any other relevant governmental authority with jurisdiction over the parties or the subject matter of these terms and conditions.

b. You shall ensure that the Third-Party Products shll not directly or indirectly be resold, exported, re-exported or transferred to any person and/or entity prohibited or restricted by any Export Control Laws and Sanctions or to any person and/or entity located in countries subject to comprehensive international sanctions, including Cuba, Iran, the Republic of the Sudan, Syria and North Korea, or any other jurisdiction subject to Australian or international sanctions.

c. We reserve the right to audit your performance under this clause, and you agree to provide any relevant information and documentation regarding any relevant end users who will be recipients of any export, re-export, sale or transfer of any products and/or services provided under this agreement. Any non-compliance or violation of this clause by you shall be construed as a material breach of this agreement and entitle us to take any necessary action to correct such breach, including without limitation the immediate termination of this agreement without liability. You will be liable for any losses, penalties, damages or expenses incurred by us in connection with your breach under this clause. We reserve the right to require you to immediately cease providing the products and/or services to specific end users if we evaluate at our own discretion that it may expose us to potential risks under the Export Control Laws and Sanctions.

19. General

We may in our sole discretion assign, subcontract or sub licence any or all of our obligations under these terms and conditions from time to time.

Any time, indulgence, waiver or non-exercise by us of any of these terms and conditions shall not affect any of our rights under these terms and conditions nor shall it be deemed a waiver by us of any provision of these terms and conditions or subsequent breach of these terms and conditions.

If any term or condition is found to be invalid, illegal or otherwise unenforceable, it will be deemed modified to the extent necessary in the court’s opinion to render it enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving, to the maximum extent possible, the intent of the parties.

20. Interpretation

In these terms and conditions unless otherwise indicated by the context:

i. reference to a party to a document includes that party’s successors and permitted assigns;

ii. “including” and other similar words are not words of limitation;

iii. an agreement, deed, covenant, representation or warranty on the part of two or more persons binds them jointly and severally;

iv. general words following words describing a particular class or category are not restricted to that class or category;

v. “Law” means any Commonwealth or Australian state legislation, regulations and the general law (all as amended or replaced from time to time) and includes in particular the Commonwealth Competition and Consumer Act 2010 (Cth) and the Personal Property Securities Act 2009 (Cth);

vi. “PPSA” means Personal Property Securities Act 2009 (Cth); “PMSI” or “purchase money security interests” has the meaning given in section 14 of the PPSA;

vii. “Corporations Act 2001” means the Corporations Act 2001 (Cth);

viii. Force Majeure Event includes without limitation:

(a) an act of God;

(b) war, revolution, or any other unlawful act against public order or authority;

(c) an industrial dispute;

(d) a governmental restraint; or

(e) any other circumstances or event outside of our reasonable control.

ix. “Third-Party Product” means products and/or services that are provided by third parties whether or not branded or identified as a third-party product or service; and

x. “Third-Party Suppliers” means the suppliers or vendors of the Third-Party Products.