NativUC. Terms and Conditions of Sale of Hardware

 

1. Definitions

• Where used in these Terms and Conditions of Sale of Hardware:

  1. “Authorised Representative” means any person who holds the job title and office of General Manager, Finance Director or Vice-President.

  2. “Customer” means you or any of your subsidiaries purchasing Product from NativUC.

  3. “Conditions” means these Terms and Conditions of Sale.

  4. “Contract” means any agreement for the purchase and sale of Products between NativUC and Customer which result from a Purchase Order submitted to and accepted by NativUC under these Conditions.

  5. “Contract Date” means the date upon which a Purchase Order is accepted by NativUC.

  6. “Force Majeure” means, without limitation, any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labour, trade disputes, breakdowns, accidents of any kind or any other causes which, in all cases, are beyond the reasonable control of NativUC (including delay or shortages by its Suppliers).

  7. “Products” means the hardware, software, or any combination thereof, and related documentation, identified in the Website, https://www.NativUC.com.au/ which are made available for purchase and/or license by Customer pursuant to a Contract. Products shall be new or like-new, unless Customer requests refurbished Product. NativUC will fulfil Purchase Orders for refurbished Product to the extent NativUC has refurbished Product available.

  8. “Purchase Order” means Customer’s submission of a written or electronic order for Products through the Website or other documentation indicating name, quantity and pricing of Products to be purchased.

  9. “NativUC” means NativUC Australia PTY LTD and its subsidiaries.

  10. “Supplier” means the supplier, licensor, publisher, manufacturer or other third party provider of Products.

  11. “Website” means the portal hosted by NativUC through which Products are made available for purchase.

• As used in these Conditions, (i) any reference to a statute shall be construed as a reference to that statute as amended, re-enacted or otherwise modified from time to time, (ii) the term “including” will always be deemed to mean “including, without limitation”, (iii) a definition is equally applicable to the singular and plural forms of the feminine, masculine and neuter forms of the term defined, and (iv) any headings in these Conditions are for convenience only and shall not affect the interpretation of any terms.

2. General Ordering Terms.

• Customer may purchase Products under these Conditions by issuing a Purchase Order to NativUC. Only a Purchase Order submitted by Customer shall constitute an offer to contract subject to these Conditions. All Purchase Orders are subject to acceptance by NativUC.

• No additional or alternative terms or conditions or any alteration to these Conditions proposed by the Customer contained or referred to in a Purchase Order or other form submitted to NativUC shall be deemed to apply unless they are expressly accepted in writing by an Authorised Representative of NativUC with respect to that Purchase Order.

• Customer’s subsidiaries shall be defined as any entity which the Customer controls or owns more than 50% of its shares. Customer guarantees full and prompt payment to NativUC of any sums as they fall due for any Purchase Orders placed hereunder by Customer’s subsidiaries.

3. Cancelling & Rescheduling Purchase Orders.

Except as set forth below, no Purchase Order which has been accepted by NativUC may be cancelled or rescheduled by Customer except with written agreement by NativUC.

4. Limited Product Return Right.

• Product may be returned by Customer for any reason within thirty (30) days of delivery of the Product (“Return Period”), and NativUC will accept the return and provide a refund to Customer of the price paid by Customer for the Product, or a lesser amount depending on the condition of the returned Product, as set forth below. The refund shall also include taxes and any fees, duties and similar charges that were paid by Customer to NativUC and refundable. The refund will not include the shipping fees associated with the purchase of the Product. The amount of the refund will be dependent on the condition of the returned Product, such condition determined solely by NativUC. If the Product is, in NativUC’s sole discretion, in such a condition that it cannot be resold, no refund will be provided. Customer shall contact NativUC to arrange for any such return. All returns under this Section 4 are subject to a processing fee (which includes shipping charges to return the Product) (a “Return Processing Fee”) of thirty Canadian dollars (CDN$30.00), fifteen British pounds (£15.00), eighteen Euros (€18.00), or twenty-five US dollars (US$25.00) or its equivalent for any other currency, that shall be charged to Customer by NativUC. The Return Processing Fee will be assessed on each returned Product and will be collected at the time of processing Customer’s return request

5. Prices.

• The price of Products on the Contract Date shall be the quoted price.  All prices and charges are exclusive of the cost of shipping, delivery and insurance, if any, as well as applicable value added tax (VAT), sales, use, consumption, privilege, gross sales tax (GST), and other taxes (other than taxes based upon NativUC’s net income), duties or customs fees for which the Customer shall be additionally liable for paying. In addition, prices exclude any copyright levies, waste and environment fees and similar charges that NativUC by law or statute may charge or collect upon in accordance with such laws or statutes.

• Customer will be responsible for any sales, uses, excise, value added, services, consumption, and other taxes and duties payable by Customer on any Products purchased by Customer where the tax is imposed on Customer’s acquisition or use of such Products and the amount of tax is measured by Customer’s costs in acquiring such goods or services. Customer shall make all payments of any such taxes to NativUC without reduction for any withholding taxes, which shall be Customer’s sole responsibility. All taxes shall be paid by Customer to NativUC unless Customer provides NativUC with a valid certificate of exemption acceptable to the appropriate taxing authority.

6. Invoicing and Payment.

• Customer shall pay the purchase price, without any deduction or set-off, within thirty (30) days from the date of the invoice which shall be issued to Customer on the date that Products are shipped. Invoices shall be issued by NativUC to Customer upon delivery of the Products in accordance with Section 7.

• Customer shall make payment to NativUC in the currency indicated on the invoice.

• All express deliveries may be subject to additional shipping charges regardless of invoice value.

• If: (i) Customer fails to make any payment under any Contract when due; (ii) Customer is a body corporate and any resolution or petition to wind up Customer’s business (other than for the purpose of amalgamation or reconstruction) is passed or presented; or (iii) Customer is an individual or a partnership, and any grounds arise for the application for a bankruptcy order made under applicable bankruptcy and/or insolvency laws (an “Act of Bankruptcy”), then, without prejudice to any other right or remedy available to NativUC, the full price of all Products delivered to Customer under any Contract, but not paid, shall become immediately due (notwithstanding any previously agreed credit terms) and NativUC may take any or all of the following courses of action:

  • by notice, suspend or terminate any Contract or any part thereof, without liability, stop any Products in transit and, at its discretion, subject to Section 8, enter Customer’s premises to recover Products for which payment has not been made in full;

  • charge Customer interest, both pre- and post judgment, on any unpaid amount past due, at the rate of 2.5% per month, or the maximum rate allowed by law, until full payment is made. For clarity, a part of a month shall be treated as a full month for the purpose of calculating interest;

  • set-off any amounts due against any credit note, balance or other liability issued by NativUC to Customer;

  • appropriate any payment made by Customer for such Products as NativUC may deem fit (notwithstanding any purported appropriation by Customer); and/or

  • alter Customer’s payment terms, which may include withdrawing or altering any credit limit previously granted, requiring prepayment, and demanding adequate assurance of due performance by Customer through the provision of a bank guarantee.

7. Delivery, Risk of Loss, and Title

Customer agrees that all deliveries of Products (including deliveries after repair or replacement) will be made as follows:

• Delivery. Unless NativUC provides Customer with express written confirmation of a different delivery term, all deliveries of Products will be made FCA (INCOTERMS 2010) at the delivery point specified by NativUC. Notwithstanding the agreed delivery term, NativUC may charge Customer for shipping and handling charges, which may be reflected as a separate line item on NativUC's invoice.

• Title and Risk of Loss. Title and Risk of Loss to all Products will pass to Customer when the Products are transferred to a carrier at NativUC´s designated shipping location. Title to Software provided under this Agreement will remain solely with NativUC and its licensors. Notwithstanding the foregoing, should Customer fail to pay NativUC for Products within thirty (30) days of shipment, Title may, in NativUC’s sole discretion revert back to NativUC upon written notice to Customer.

• Any dates quoted for delivery of the Products are approximate only and NativUC shall not be liable for any delay in delivery of the Products however caused. Any Products may be delivered by NativUC in advance of the quoted delivery date upon giving reasonable notice to Customer.

• If the destination of the Products is not in the same country as NativUC’s designated shipping location, NativUC may arrange on behalf of the Customer, for its shipping vendor to deliver the Products in the destination country. The foregoing in the understanding that: i) the shipment of the Products to the destination country is permitted by NativUC, its Supplier, OEMs, and applicable regulations; ii) the delivery term will remain FCA (Incoterm 2010) NativUC’s  designated shipping point; iii) Customer remains responsible for all charges as described in Section 5(a); iv) NativUC shipping agent accepts to manage the exportation and importation of the Products for the Customer; and, v) Customer will remain responsible for import and export regulations and compliance with applicable laws, including without limitation Section 15 Compliance with Laws of these terms.

• Claims for non-delivery of Products must be made in writing to NativUC within five (5) working days from: (i) the date of invoice; or (ii) receipt of partial delivered of the Products, if any. Customer agrees to notify NativUC promptly in the event Customer receives the invoice prior to receipt of the Products.

• Customer agrees to accept partial delivery of Products ordered unless otherwise mutually agreed by the parties in writing. Where the parties agree in writing that a shipment must be sent complete, Customer agrees to accept allocations of Product in the event of shortage by Supplier. Where the Products are delivered in installments, each delivery shall constitute a separate Contract. Failure by NativUC to deliver any one or more of the installments in accordance with these Conditions or any claim by Customer in respect of any one or more instalments shall not entitle Customer to treat a Contract as repudiated or to cancel any other instalment.

• If Customer fails to take delivery of the Products within 48 hours after the scheduled date of shipment, or fails to give NativUC adequate delivery instructions in its Purchase Order, then, without prejudice to any other right or remedy available, NativUC may: (i) store the Products until actual delivery and charge Customer for the reasonable costs thereof, including insurance costs; (ii) terminate the Contract forthwith and sell the Products; or iii) ship the Products by a freight forwarder to Customer´s business location business location indicated in the correspondent purchase order with Customer remaining responsible for all reasonable freight and insurance costs. Title and Risk of Loss will pass when the Products are transferred to the freight forwarder at NativUC´s, or its Supplier’s, designated shipping location.

• Customer shall bear any and all costs (including original and return carriage costs) associated with any unjustified refusal of delivery of Products ordered pursuant to a Contract.

• Customer’s right to possess any Products, for which payment has not made shall immediately cease: (i) after the appointment of a receiver to its property; (ii) after it has been placed in liquidation or administration; (iii) when and if Customer makes an arrangement for the benefit of creditors generally, suffers or permits the appointment of an administrator, administrative receiver or receiver for its business or assets, or avails itself or becomes subject to any proceeding under any applicable bankruptcy laws; (iv) if Customer is unable to pay its debts within the meaning of applicable bankruptcy and insolvency laws; (v) if Customer, not being a company, has become bankrupt; or (vi) if Customer otherwise ceases to trade or threatens to cease to trade.

8. Publications & Specifications.

Any and all specifications, descriptions, photographs, measurements, capacities or illustrations contained in any catalogues, price lists, brochures, leaflets, proposals, advertising matter, publications of NativUC or a Supplier are intended to be illustrative and approximate only and shall not form part of a Contract or constitute a representation, warranty or condition regarding any Products unless specifically agreed by written agreement between the Customer and NativUC. No employee or agent of NativUC (or any entity acting on NativUC’s behalf) has any authority to make any representation regarding the Products. Customer acknowledges that it has not been induced to accept these Conditions by any representations or statement, oral or written, not expressly contained herein.

9. Warranty.

• Customer understands that NativUC is not the Supplier of the Products. Accordingly, all Products are sold subject to the express warranty terms, if any, specified by the original Supplier of the Products. Any software supplied to Customer pursuant to a Contract is supplied subject to the provisions of the Supplier’s licensing terms. NativUC will pass through to Customer all warranties that NativUC is expressly authorised by the original Supplier to pass through to Customer.

• NativUC represents and warrants that title to all Products shall be free from all security interests, liens, and encumbrances at the time of delivery to Customer. The foregoing shall not be construed, and NativUC does not provide, any warranty against infringement of a third-party intellectual property right. Any warranties, conditions or other terms implied by common law or statute or otherwise in connection with these Conditions (except to title, in the case of Products) are hereby expressly excluded to the fullest extent permitted by law, save for fraudulent misrepresentation.

10. Warranty Assistance.

• For all Returned Products (whether pursuant to a Warranty Claim or otherwise) NativUC will, on the Customer’s behalf, initiate an RMA request with Supplier. Following an RMA request, NativUC shall issue an RMA number and issue a shipping label to Customer via electronic exchange (an “RMA”).

• Customer shall immediately notify NativUC if any Products supplied to Customer prove to be defective in quality or condition within the Supplier’s warranty period (the “Claim”). Upon receipt of notification of such Claim, NativUC shall notify Customer whether, as a matter of Supplier policy, the Claim must be handled directly with the Supplier or indirectly through NativUC. In the event the Claim must be handled directly between Customer and Supplier, NativUC shall provide contact information to enable Customer to contact Supplier. In the event the Claim will be handled by NativUC, then NativUC shall provide Customer with a return material authorisation (“RMA”) for Customer to return the Products to NativUC, and Customer shall return such Products to NativUC in accordance with these Conditions and NativUC’s then current RMA policy (which shall be made available to Customer upon request).

• No Products may be returned to NativUC without a valid RMA number displayed on the Products packaging. Any Products returned without a valid RMA number displayed on the Products packaging will be refused or returned. NativUC shall not be obligated to ship replacement Products to Customer until NativUC is in receipt of the original Products being returned. Notwithstanding the foregoing, upon receipt of notification of any warranty claim within the first ninety (90) days after receipt of the Product by Customer, NativUC shall process such warranty claim per Supplier procedures and ensure the shipment of a replacement Product to Customer. Replacement Product may be new or used. After the first ninety (90) days from receipt of the Product by Customer, and unless otherwise directed by NativUC, the Customer must contact the Supplier directly for any warranty repair or replacement services.

• During the first ninety (90) days after Customer’s receipt of the Product, NativUC is responsible for all shipping fees associated with a warranty claim (including, without limitation, both return of the defective Product and shipment of the replacement Product). Customer shall be responsible for any such shipping costs for warranty claims made after such initial ninety (90) day period.

• Customer agrees that NativUC’s sole liability to Customer regarding any Product defect claims is limited to the administration of such claims with the Supplier, and as set forth herein. After the first ninety (90) days from Customer’s receipt of Product, NativUC’s liability to Customer regarding any Product defect claims is limited to and is expressly contingent upon NativUC’s ability to obtain a refund, credit or replacement Products from the Supplier. NativUC has no obligation to accept a return of Products where the Customer fails to comply with Supplier’s policy on Product returns.

• NativUC shall not be liable or responsible for administering any defect or other claim which arises from normal wear and tear, misuse, negligence, accident, abuse, use not in accordance with Supplier’s Product documentation, modification or alteration not authorised by Supplier, or use in conjunction with a third party product. NativUC reserves the right to determine whether any Products are defective.

11. Warranty Returns.

• Any Products returned pursuant to an RMA issued by NativUC must be shipped to NativUC within seven (7) working days of the date of such RMA. Following an RMA request, NativUC shall issue an RMA number and issue a shipping label to Customer via electronic exchange.

• Customer irrevocably authorises NativUC to carry out any necessary tasks related to the repair or replacement of Products on behalf of Customer under these Conditions.

• Unless NativUC collects Products using its own carrier, Customer agrees that NativUC shall not be liable for any loss or damage to Products returned to NativUC.

12. Limitation of Liability.

• NATIVUC’S LIABILITY FOR ANY DIRECT LOSS OR DAMAGE ARISING OUT THESE CONDITIONS AND ANY CONTRACT FOR THE SALE AND PURCHASE OF PRODUCTS HEREUNDER SHALL BE LIMITED TO, AND SHALL UNDER NO CIRCUMSTANCES EXCEED THE PRICE PAID BY CUSTOMER FOR THE PRODUCTS GIVING RISE TO THE CLAIM (EXCLUDING APPLICABLE TAXES). NATIVUC SHALL HAVE NO LIABILITY UNDER THESE CONDITIONS OR ANY CONTRACT IF NATIVUC HAS NOT RECEIVED PAYMENT OF THE TOTAL INVOICE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM.

• EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS, NATIVUC AND ITS SUPPLIERS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY FINANCIAL, CONSEQUENTIAL OR OTHER LOSS OR DAMAGE CAUSED TO CUSTOMER BY REASON OF ANY REPRESENTATION, WARRANTY (EITHER EXPRESS OR IMPLIED), CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW; OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, RECORDS OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, DAMAGE TO REPUTATION OR GOODWILL, OR ANY MATTER BEYOND ITS REASONABLE CONTROL) OR FOR ANY OTHER CLAIMS FOR COMPENSATION HOWEVER CAUSED (WHETHER CAUSED BY THE NEGLIGENCE OF NATIVUC, ITS EMPLOYEES, AGENTS, SUPPLIERS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THESE CONDITIONS OR A CONTRACT HEREUNDER, EVEN IF NATIVUC OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, LIABILITY OR DAMAGES.

• Nothing contained herein shall be construed as excluding or limiting NativUC’s liability for death or personal injury caused by NativUC’s negligence, or wilful misconduct.

13. Intellectual Property Rights.

• Customer acknowledges that the Products are the intellectual property of the Suppliers and, to the extent any logos, copyrights, trademarks, or similar intellectual property of NativUC or its partners are affixed to Products, NativUC or its partners, as applicable. Nothing contained herein shall be deemed to grant any right or title to such intellectual property to Customer. Customer further agrees not to translate, reverse compile or disassemble any software. Customer will not remove, alter or destroy any form of copyright notice, proprietary markings, serial numbers, or confidential legends placed upon or contained within any Products.

• Customer understands and agrees that NativUC will not and has no duty to indemnify, defend or hold Customer or a third party harmless from or against any claims, losses, liabilities, damages, costs and expenses, judgments or settlement amounts arising out of or in connection with the actual or alleged infringement of a third party’s intellectual property rights, except and only to the extent that a Supplier has expressly agreed to offer such indemnification and defense to Customer on a pass through basis. In addition, NativUC will pass through to Customer all indemnities made available by Supplier that Supplier has expressly authorised NativUC to pass through to Customer.

• Nothing contained herein shall be construed as authorising or granting to Customer any right or license to use any logo, trademark or trade name of NativUC, or any Supplier, any license of which shall be subject to separate agreement including any then current policies of NativUC, or its Suppliers, as appropriate.

14. Force Majeure.

• Neither party shall be liable to the other party or be deemed in breach of these Conditions or any Contract by reason of delay or failure to perform if such delay or failure to perform was caused by Force Majeure.

• In the event of a Force Majeure event: (i) the party claiming Force Majeure shall, as soon as commercially practicable, notify the other party of such Force Majeure event provided the notifying party shall incur no liability for its failure to give such notice; (ii) the notifying party’s duty to perform shall be suspended for the duration of the Force Majeure event; and (iii) the time of performance for the party impacted by the Force Majeure event shall be extended by a period equal to the duration of said Force Majeure event.

• In the event a Force Majeure event should continue for more than ninety (90) days, either party may, by written notice to the other, cancel a Contract insofar as Products remain undelivered under said Contract. Upon such cancellation, RingCental shall have no obligation to deliver and Customer will have no obligation to accept delivery of or pay for the undelivered Products, but the Contract shall remain in full force and effect regarding all Products delivered prior to the date of cancellation.

16. Additional Terms of Sale

• Notwithstanding anything to the contrary herein, NativUC and its Suppliers reserve the right to make any changes in the specifications of the Products, without notice to Customer, which are required in order to conform to any statutory or other legal requirements or which do not materially affect the performance of the relevant Products.

• Any Products which are subject to guidelines, restrictions or provisions imposed by a Supplier are sold, supplied and delivered to Customer subject to any such guidelines, restrictions or provisions, which will be provided to Customer upon request.

17. Choice of Law & Venue.

• These Conditions, and any Purchase Order placed under them shall be governed by the laws, and be subject to the exclusive jurisdiction of the courts set forth below.

• Conditions and any dispute, claim or controversy arising out of, or relating to these Conditions, including formation, interpretation, breach or termination of these Conditions, a Purchase Order or a Contract, will be governed by and intended to be construed under the laws of New South Wales. Any related action, lawsuit, or proceeding shall be brought in and adjudicated by the by the courts of Australia.

• Each party waives any right it may have to claim that the chosen jurisdiction under these Conditions is not a convenient forum and expressly waives any right to a jury trial regarding disputes related to these Conditions.

18. Miscellaneous.

• Assignment. Customer may not transfer or assign these Conditions to a third party by operation of law or otherwise without the prior written consent of NativUC. NativUC may assign any Purchase Order or these Conditions, in whole or in part without the consent of the Customer. NativUC shall endeavor to provide prompt notice of any assignment to the Customer. Any assignment in violation of this Section shall be void.

• Waiver. Failure by either party to enforce any provision of these Conditions or a Contract shall not be deemed a waiver of the right to thereafter enforce that or any other provision of these Conditions or a Contract.

• Severability. In the event that any provision of these Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of these Conditions will remain in full force and effect.

19. Entire Agreement.

These Conditions constitute the entire agreement between the parties as to the subject matter hereof and supersedes and cancels any and all of Customer’s terms and conditions, or other written or oral agreements previously existing between the parties and/or their affiliates with respect to such subject matter. Customer acknowledges that it is not entering these Conditions on the basis of any representations not expressly contained herein. Every Contract for the sale and purchase of Products as defined herein between NativUC and the Customer or any of its subsidiaries shall be subject to these Conditions, unless Customer and NativUC have signed a separate agreement regarding the subject matter herein, in which case the separate agreement will govern. Customer shall be deemed to have accepted these Conditions by the earlier of: (i) indicating acceptance to these Conditions through the Website, (ii) submitting a Purchase Order through the Website; or (iii) accepting Products from NativUC.