Terms and conditions of quotation and sale
These Terms and Conditions of Quotation and Sale (“Terms and Conditions”) apply to all products, services and support supplied by NEC Australia Pty Ltd (referred to as the “Company”). Except as otherwise expressly agreed upon in writing between a duly authorised officer of the Company and the Customer, these Terms and Conditions will apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by the Customer.
- Additional Activities means any activity carried out by the Company during or after the execution of the Contract, in addition to the activities explicitly agreed and approved in the Order Confirmation.
- Additional Offer means an offer by the Company to the Customer to provide additional products and/or services which is made after the formation of the Contract.
- Company means NEC Australia.
- Contract means an agreement between the Company and the Customer in relation to the provision of products and/or services and/or support provided by the Company to the Customer which is formed when the Company sends the Order Confirmation to the Customer.
- Customer means the party to whom the Company sends the Quotation, and/or the enters into a Contract.
- Order means a written request by the Customer to the Company for the provision of products and/or services.
- Order Confirmation means the written confirmation of the Order (including in the form of a purchase order) which is sent by the Company to the Customer.
- Quotation means the quotation, offer and/or estimate submitted by the Company to the Customer for the provision of products and/or services by the Company.
2. General Conditions and Applications
- All Quotations provided by the Company to the Customer or submitted by the Customer to the Company are subject to these Terms and Conditions. The Company may at any time vary or alter these Terms and Conditions. A copy of the current Terms and Conditions are located on the website.
- Modifications, additions and/or extensions of these Terms and Conditions, and/or provisions that vary these Terms and Conditions will be only be binding on the Company if agreed between the parties in writing.
- The Company rejects the applicability of any Customer terms and conditions, unless expressly agreed otherwise by the Company in writing.
- These Terms and Conditions will apply to any Additional Offers made by the Company to the Customer.
- If any provision of these Terms and Conditions is deemed to be invalid or in violation of the public order or the law, only the invalid provision will be considered not to be in force and of any effect, all other clauses and provisions will remain in effect.
- The Company may modify these Terms and Conditions at any time. Any changes will take effect from the time they are communicated by the Company to the Customer or uploaded to the Company website, whichever is the earlier.
- If a customer cancels or alters any Order for Special Products or services more than three (3) days from the Order Confirmation sent by the Company, the Company reserves the right to charge to the Customer costs of the Special Products and materials already acquired for the order, together with costs of the labour and tooling expended to the date of such cancellation or alteration.
3. Quotations, Orders and Contracts
- The validity period of a Quotation should be stated in the Quotation. Where no validity period is included, then the validity period will conclude on December 31st of the calendar year stated in the Quotation.
- A Contract between the Company and the Customer will commence on the date the Order Confirmation is sent to the Customer by the Company.
- The Company may in its absolute discretion refuse to accept an Order whether received from an existing Customer or a new Customer. The Company will not be liable for any damages, loss or compensation arising from its decision to refuse, to accept or to cancel an Order after it has been received by the Company.
- The Company is not required to provide the Customer with any reason or justification for its decision to refuse or cancel the Order pursuant to paragraph (c) above.
- Acceptance of an Order is subject to NEC Business Unit approval which will control the fulfilment of the Customer Order.
- If any products or materials specified within the Quotation become unavailable prior to delivery or installation, the Company in its absolute discretion may substitute an equivalent product or material.
- All images, drawings, measurements and weights calculations, statements regarding capabilities, results and/or performance expectations provided by the Company are provided for information only and are not binding upon the Company.
- If the Customer makes available to the Company, any documents, data or drawings prior to the Company preparing a Quotation, the Company is entitled to rely upon and assume that the contents of the documents, data and drawings are correct and it will formulate a Quotation accordingly. The Company will treat the Customer documents, data or drawings provided under this clause as Confidential Information in accordance with clause 13.
4. Quality and Description
- Products provided by the Company will conform with the quantity and description as stated in the Quotation. If samples or demonstration models are provided, the products shall match the sample or demonstration models. If the standard of performance is specified in a specification, the products shall be capable of such performance. If the Customer specifies or makes known to the Company the purpose for which the products are required, the products will be fit for the purpose the Customer has made known.
- Use of the products for purposes not described in the Quotation and/or in the User Manual are considered to be improper use and are excluded from the product warranty provided by the Company. Please also refer also to clause 7 for Warranty coverage.
- Unless otherwise stated, all prices in the Quotation are in Australian dollars (AUD) and do not include: GST, installation, delivery and/or travel expenses, or any additional costs resulting from delays due to force majeure. Pricing does not include any costs related to activities performed by third parties.
- Where a Quotation is prepared for Special Products, the Customer understands that the Company’s quoted price is subject to change and will need to be updated, where the Customer modifies its requirements or specifications for the Special Products.
- If there is any error or omission in the Quotation, the Company reserves the right to amend the Quotation price. This clause applies even if the Quotation has been accepted by the Customer. In this case the Company will send an updated Quotation.
- Price differences between Quotations issued for the same products may be due to increases in wage costs and/or changes in other costs of manufacturing or on raw material acquisition.
- The Company reserves the right to revise a Quotation based upon any changes in scope requested by the Customer and/or any fluctuations in market conditions that have occurred between the date of the Quotation and the earlier of the expiration of the Quotation validity period or the date the Order Confirmation is sent to the Customer.
Each Quotation will state whether the cost of installation is included in the Quotation price or not.
- If installation costs are not included in the Quotation price, then the Company will separately itemise the installation costs in the Quotation.
- It is the responsibility of the Customer to ensure that installation can be completed without any interruption on the mutually agreed date. The Company reserves the right to charge the Customer extra costs incurred by the Company by virtue of a delay or interruption to the agreed installation date, including travel costs and related expenses.
- It is the responsibility of the Customer to ensure that all necessary electrical and telecommunication work has been performed at the site where the product is to be installed, prior to the agreed installation date. Where this does not occur and the installation date is deferred, the Company may charge the Customer additional costs pursuant to clause 6 (b).
- The Customer may request the Company to provide a separate Quotation for the installation of additional Company products. This Quotation will constitute a separate Offer by the Company to the Customer.
The duration of the warranty should be stated in the Quotation. Where the warranty duration is not stated, then the Company provides the following warranty for product(s) provided by the Company to the Customer pursuant to a Contract: one (1) year for hardware and ninety (90) days for software commencing from the date of delivery of the product to the Customer (“Warranty Period”).
- During the Warranty Period the Customer should give notice in writing to the Company of any faults or defects in the product, not being a defect or failure due to the design prepared or specified by the Customer. Provided that the fault or defect is not caused by improper use of the product by the Customer, the Company shall, at the option of the Company either repair or replace the product so as to remedy the defect(s).
- The Customer shall, as soon as practicable after discovering any defect or failure, return the defective products or parts to the Company, at the expense of the Company, unless it has been agreed between the parties that the necessary replacement or repair shall be carried out by the Company on the Customer’s premises.
- The Customer will ensure that it packs the products to withstand the ordinary risks of handling and transport, having regard to the nature of the products. Where the Company receives product or product parts from the Customer that are in a damaged condition due to inappropriate packing by the Customer, the Company is not obliged to honour the warranty.
- Warranty does not apply to parts subjected to routine, programmed maintenance and consumable parts.
- For any inquiry in warranty or more information about maintenance and consumable parts please contact NEC Australia.
8. Delivery "lead" Time
- The Delivery ”lead” time for products will vary, according to whether the product is “standard” or is being specifically made for the Customer (“Special Product”). The Company will include an indicative delivery/lead time in the Quotation, which is not binding upon the Company and is provided for the information of the Customer only.
- The Customer is not entitled to cancel the Contract because the indicative delivery/lead time cannot be met, nor is the Company liable to the Customer for any loss or damage suffered by the Customer by reason of the delivery/lead time being changed. The Company will use its reasonable endeavours to provide regular updates to the Customer about the delivery/lead time for both “standard” and “special” products.
9. Terms of Delivery and Transport
The Company will ensure that:
- Products are labelled legibly and packed to withstand the ordinary risks of handling and transport, having regard to the nature of the products.
- It utilises freight carriers who will take reasonable care to protect and safeguard the products while they are being transported to the place or places specified in the Quotation.
- The Customer is required to examine products immediately after delivery and notify the Company in writing if the products have arrived in a damaged state. The Company will not be liable for any mis-delivery, shortage, defect or damage unless the Company receives details in writing within five (5) calendar days from the date of the arrival of the products.
- In the event of the products being damaged or lost in transit, the Company will repair or replace products free of charge. The Customer shall promptly provide written notification of such damage or loss to the Company in accordance with clause 9 (b).
10. Property and Risk
- Notwithstanding delivery and/or installation of the products, title in any products supplied and/or installed will remain with the Company until the Customer has paid for the products in full.
- The Customer acknowledges that if it is in possession of any products supplied and/or installed, it holds such, solely as a fiduciary bailee for the Company until payment has been made in full to the Company as described in clause 10 (a).
- The risk in any products supplied and/or installed will pass upon delivery of the products (actual or constructive) to the Customer.
11. Liability of Company
- Except for liability for damage, loss or delay resulting from the negligence, deliberate or reckless actions of the Company, the Company expressly excludes all conditions, warranties and guarantees, whether express or implied, statutory or otherwise.
- The Company will not be liable to any party (including the Customer) whether arising under the law of contract, of tort (including negligence), statute, in equity or otherwise for:
- Loss of profit, loss of revenue, loss of goodwill or business opportunity even if the parties could foresee or were advised such losses could arise;
- Without limiting clause 11 (b) (i), losses other than those that may be fairly and reasonably be considered as naturally flowing from the breach of the Contract as the probable result of the breach of contract,
- The Customer will indemnify the Company and keep the Company indemnified against any claims by a third party for or in respect of such damages referred to in this clause (b).
- Subject to clause 11 (b), the Company’s total aggregate liability in respect of any and all claims arising under or pursuant to these terms and conditions will not exceed the amount paid to the Company for the provision of products and/or services in the twelve (12) month period prior to the date the liability arose, regardless of whether those claims arise out of a single event or a number of different events.
- To the extent permitted by law, the Company’s liability for any breach of any conditions, warranties or guarantees will be limited at the Company’s option to:
- In the case of product:
- replacement of repair of the product or supplying equivalent product; or
- paying the cost of replacing the product.
- In the case of services:
- Supplying the services again; or
- Paying the cost of having the services supplied again.
- In the case of product:
12. Terms of Payment
- Payments due to the Company are to be made, without deduction, within the term stated in the Quotation or if none specified, within 30 days of the date of the relevant invoice or such other period as may be stated on the invoice.
- Payment will be considered complete when the funds are cleared in the Company’s nominated bank account.
- If the Customer fails to make payment in accordance with the terms, the Company will be entitled to:
- charge default interest at the rate of 10% per annum on all overdue amounts (including late payment charges and amounts other than the price) calculated daily on and from the due date for payment and the parties agree that any amount so calculated is not a penalty but rather an accurate pre-estimate of the damage to be incurred by the Company. Payments received from the Customer will be credited first again any default interest, then in payment of services and then against payment of any goods, and all such charges will be payable on demand;
- claim from the Customer, all costs relating to any action taken by the Company to recover money due from the Customer including any legal costs and disbursements on a solicitor-client basis;
- cease all work remaining to be performed by the Company under the Quotation or Contract and terminate any agreement in relation to delivery of materials that have not been delivered prior to the Customer’s default;
- require the Customer to pay cash upon delivery.
- Both parties undertake and agree to:
- only use the other party’s confidential information for the purposes contemplated by these terms and conditions;
- take reasonable steps to keep the other party’s confidential information confidential;
- not without the other party’s written consent, disclose, publish or make any part of the other party’s confidential information known to any person.
- Clause 13 (a) will not apply to information that:
- Was in the public domain at the date the information was provided; or
- Was in the possession of the receiving party prior to receiving it from the disclosing party; or
- The receiving party is obliged by law to disclose the confidential information and has advised the other party of this obligation.
14. Ownership and Disclosure of Documents
- Reports, sketches, drawings, models, etc. used by the Company for the Quotation and/or included in the Company’s recommendations or results are and remain the property of the Company.
- In absence of prior written consent from the Company, as regards the Company’s documents, such as reports, recommendations, projects, sketches, drawings, models and the like, the Client is not authorized:
- to disclose them or allow them to be utilised by third parties; or
- to use them or to allow others to use them to make claims or initiate judicial proceedings.
15. Force Majeure
- The Company will not be liable for any failure or delay in supply, delivery or installation where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of the Company including, but not limited to war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storms or tempest, earthquake, global pandemic, or other natural disasters, vandalism or riot, civil commotions or accidents of any kind (each an “Event of Force Majeure”).
- The Company’s obligations under a Quotation or Contract will be suspended until the Event of Force Majeure ceases to cause the failure or delay (as the case may be). The Customer will not be relieved of any obligation to make payment to the Company regardless of any party being affected by an Event of Force Majeure.
16. Termination, cancellation, extension of the Contract
- Where the Customer makes a decision to terminate, cancel or extend a Contract which is in place with the Company, the Customer’s decision must be communicated in writing to the Company in a timely manner.
- If the Customer fails to comply with any of these Terms and Conditions being a natural person or persons commits any act of bankruptcy or being a corporation passes a resolution for winding up or liquidation (other than for the purpose of reorganisation or reconstruction) or enters into any composition or arrangement with creditors or if a receiver, manager, receiver manager or administrator is appointed for any property assets of the Customer or becomes liable to be wounds up by reason of insolvency or if any petition is presented for its winding up, or if a Liquidator or Provisional Liquidator is appointed, the Company may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately enter premises occupied by the Customer to recover possession of any products not paid for in accordance with these Terms and Conditions (refer clause 10 (c)) without in any way being liable to the Customer or any person claiming through the Customer.
- The Customer will reimburse the Company for all costs and damages or losses resulting from termination, cancellation or termination of the Contract by the Customer, without prejudice to the right of the Company to take legal action.
- If the Contract is cancelled, the Company will charge the Customer for cancellation costs if the cancellation:
- Occurs less than two weeks but more than a week before the start of the Contract: 60% of the Order amount;
- Occurs less than a week before the start of the Contract: 90% of the Order amount.
- In case of delay or extension of the work included in the Contract, the Company may charge additional costs if the causes of delay or extension cannot be attributed to the Company.
17. Governing Law
- These Terms and Conditions and any Contracts formed shall be governed by and construed in all respects in accordance with the laws of the state of Victoria, Australia.
- Any dispute between the Customer and the Company, concerning the interpretation, validity or effectiveness of these Terms and Conditions or the formation of a Contract will be heard exclusively by the Courts of the State of Victoria.
- The Company complies with the Australian Privacy Laws and Privacy Principles. The processing of personal data is only permitted with the express consent of the interested party, except for cases provided by the law.
- Personal data may be processed as part of the normal activities of the Company for administrative, accounting and commercial purposes, including:
- fulfilment of tax and accounting obligations;
- commercial and administrative customer management (customer administration, contracts, orders, order confirmations, shipments, invoices and reliability and solvency checks);
- management of suppliers (administration of contracts, orders, arrivals, invoices and selection of them in relation to the needs of the Company).
- The recipients or categories of recipients to whom the Company interfaces, may be companies, organizations or external persons that perform activities strictly connected and instrumental to the management of the commercial relationship such as:
- credit institutions;
- consultants and freelancers, individuals and associates.
- Personal data will be stored for a maximum duration of 10 years from the conclusion of the Contract.
- The interested party has the right to obtain from the Company, confirmation that personal data is being processed or not, and in this case has the right to:
- obtain access to personal data, requesting its correction or cancellation, or its limitation of the processing or to object to their treatment by the Company;
- to receive in a structured format, of common use and readable by an automatic device, data concerning him and he has the right to transmit such data to another data controller (data portability),
- to be informed of the existence of an automated decision making, including profiling;
- if express, withdraw the consent at any time without prejudice to the lawfulness of the treatment based on the consent given prior to the revocation;
- propose a complaint to the supervisory authority.
- At any time the Customer can, without any formalities, exercise the rights referred to in the above clauses by contacting the Company or by using the appropriate form for the request. Without the processing and communication of data due for the prescribed purposes, products and/or services requested, in whole or in part, cannot be provided to the interested party.
- For further information on any subject of privacy or in the event that you wish to exercise your rights, withdraw your consent or raise other issues concerning your privacy, please contact NEC on 13 16 32 between 9.00am and 5.00pm Monday to Friday or alternatively write to Locked Bag 38003, Docklands VIC 8012 or email NEC.
19. When these Terms and Conditions became effective
These Terms and Conditions are effective from 30 June 2022.