FRIENDLYWARE PARTNERS PTY LTD - TERMS AND CONDITIONS OF SUPPLY AND SERVICE

1. INTERPRETATION

In these Terms:

1.1. “Agreement” means any agreement between Friendlyware and the Customer for the supply of Products and/or performance of Services;

1.2. “Charges” means the moneys payable by the Customer for the provision of the Products and/or performance of the Services;

1.3. “Customer” means any person or entity who acquires Products and/or Services from Friendlyware;

1.4. “Excluded Loss or Damage” means any:

1.4.1. loss of profit, revenue (including anticipated revenue), use, product or production (including delayed, postponed, interrupted or deferred production and/or inability to produce, deliver or process), bargain, contract, expectation or opportunity, access to markets, goodwill and/or business reputation even if such loss is a direct loss or a loss that flows naturally from the relevant breach;

1.4.2. cost of removal or storage of defective goods or plant or materials;

1.4.3. indirect loss;

1.4.4. loss consequential on other loss;

1.4.5. remote or unforeseeable loss or damage;

1.4.6. liquidated sums including liquidated damages, penalties, losses or damages arising under any contracts or agreements other than the Agreement;

1.4.7. kind of loss or damage considered other than loss arising in usual course of things; and

1.4.8. any similar loss or damage, whether or not in the reasonable contemplation of the Parties at the time of execution of the Agreement,

and in each case arising from or in connection with the performance of the Agreement, whether arising from a breach of contract or tort (including negligence) or indemnity or under any statute or any other basis, in law or equity, and whether or not foreseeable by Friendlyware or the Customer at the time of entering into the Agreement.

1.5. “Friendlyware” means Friendlyware Partners Pty Ltd ABN 98 619 493 962;

1.6. “Friendlyware’s Premises” means 25/102 Bay Road, Waverton NSW 2060;

1.7. “GST” means the Goods and Services Tax imposed by A New Tax System (Goods & Services Tax) Act 1999 and any related act and/or regulations;

1.8. “PPSA” means the Personal Property Securities Act 2009 (Cth).

1.9. “PPSR” means the personal property security register created under the PPSA.

1.10. “Products” means all goods, equipment, hardware, software, associated components and products including consumables, sold, on-sold, supplied and/or delivered by Friendlyware to the Customer from time to time;

1.11. “SaaS” means the cloud-based software services provided by Friendlyware to the Customer, including access to, and use of, the software hosted on the Supplier’s infrastructure or a thirty-party infrastructure, subject to the terms and conditions of this Agreement.

1.12. “Services” means all planning, consultancy, installation, commissioning, maintenance, support, repair and on-site and remote access technical support services performed by Friendlyware for the Customer from time to time and also Software-as-a-Service (SaaS) subscriptions; and

1.13. “Terms” means these Terms and Conditions of Trade.

2. APPLICATION

2.1. These Terms apply to all Products sold or supplied and/or the performance of Services to the Customer by Friendlyware and the Customer acknowledges having received a copy of these Terms.

2.2. No amendment, alteration, waiver or cancellation of these Terms is binding on Friendlyware unless confirmed in writing by Friendlyware.

2.3. Any terms and/or conditions of the Customer relating to the supply of the Products and/or the performance of the Services will be of no force or effect between Friendlyware and the Customer unless and then only to the extent agreed to in writing by Friendlyware.

2.4. The Customer acknowledges and agrees that:

2.4.1. no employee or agent of Friendlyware may make any representation, warranty or promise in relation of the Products or the Services other than as contained in these Terms;

2.4.2. the Customer has determined that the Products are fit for the purpose for which they are required;

2.4.3. the Customer has not relied on the skill and judgment of Friendlyware in selecting the Products; and

2.4.4. the Customer has checked the Products for suitability, functionality and completeness.

3. CHARGES

3.1. Prices quoted for Products and Services are fixed for thirty (30) days from the date of the quotation unless stated otherwise.

3.2. Unless waived by Friendlyware, fees apply to all Services performed and are charged at fifteen (15) minute increments.

3.3. Friendlyware reserves the right to charge for travel time that, in Friendlyware’s opinion, is excessive.

3.4. Friendlyware must give the Customer a tax invoice.

4. TERMS OF PAYMENT

4.1. The Customer must pay the Charges in full without any deduction or discount other than as stated in these Terms or in the relevant invoice or statement issued to the Customer by Friendlyware.

4.2. Unless alternative arrangements have been made in advance, payments must be made on receipt of invoice by cheque or direct deposit.

4.3. Queries regarding invoices must be made within seven (7) days of receipt of invoice.

4.4. In the absence of any specific written direction to the contrary, payments will be credited against the oldest outstanding account of the Customer with Friendlyware to the most recent.

4.5. The Customer cannot set-off from any payment, any counter-claims that the Customer may have or considers it has against Friendlyware.

4.6. Interest is payable on all accounts overdue by more than thirty (30) days, calculated on a daily basis at the rate of interest equivalent to St. George Bank’s indicator lending rate as at the final date of payment plus 2% until full payment is received by Friendlyware.

4.7. Friendlyware reserves its right to suspend supplying Products and/or performing Services, including SaaS, for the Customer until any and all outstanding invoices have been fully paid.

5. SUPPLY OF PRODUCTS

The Customer acknowledges and agrees that:

5.1. Friendlyware will supply the Products specified in the Agreement;

5.2. Friendlyware reserves the right to supply the Products in whole or by instalments; and

5.3. any failure by Friendlyware to deliver instalments within any specified time does not entitle the Customer to repudiate the Agreement with regard to the balance remaining undelivered.

6. PROPERTY IN PRODUCTS / RETENTION OF TITLE

6.1. Legal and beneficial ownership of the Products will not pass to the Customer and Friendlyware will have security interest in the Products until such time as the Products so supplied have been paid for in full in cash or cleared funds.

6.2. Until the amount payable in respect of the Products has been paid in full in cash or cleared funds:

6.2.1. the Customer will hold the Products as bailee only for Friendlyware;

6.2.2. any monies received or income generated by the Customer (up to the amount owing to Friendlyware) through the use of such Products will be deemed to be received on trust for Friendlyware; and

6.2.3. the Products must be stored in such manner that they are readily distinguishable from other products owned by the Customer or other persons, so as to clearly show that they are the property of Friendlyware.

7. PERFORMANCE OF SERVICES

The Customer acknowledges and agrees that:

7.1. Friendlyware will perform the Services specified in the Agreement;

7.2. a quote for Services prepared by Friendlyware assumes that all previous maintenance services have been completed in accordance with the manufacturer’s specifications and manuals;

7.3. Friendlyware will perform all Services in a professional and workmanlike manner;

7.4. in the course of performing the Services, Friendlyware may require remote access to the Customer’s computer system(s) and network(s);

7.5. in the course of performing the Services, Friendlyware will need to access and collect information about the Customer’s computer system(s) and network(s);

7.6. where Services involve the installation of software, Friendlyware is authorised to agree to standard software licence agreements on the Customer’s behalf;

7.7. where Services involve repair work, while Friendlyware will use its best endeavours, Friendlyware will not be responsible if the Customer’s computer system, network and/or component(s) cannot be repaired;

7.8. the Customer may be liable to pay Charges even if the Services are not successful; and

7.9. unless expressly stated otherwise in writing, any quote for Services is based on the assumption that the Services are provided during normal business hours and, if the Services are provided outside normal business hours, additional charges may apply.

8. APPLICATION OF AND COMPLIANCE WITH LAWS, TERMS AND CONDITIONS

Without limiting these Terms, the Customer must observe and comply with any and all:

8.1. manufacturer’s, publisher’s, licensor’s and/or supplier’s terms and conditions attaching to Products supplied under an Agreement; and

8.2. applicable laws and regulations in relation to copyright, patents, trademarks and designs.

9. RISK AND INSURANCE

9.1. The Products are entirely at the risk of the Customer from the moment the Products leave Friendlyware’s Premises even though property in and title to the Products have not passed to the Customer.

9.2. The Customer must, at its own expense, maintain the Products and insure them for the benefit of Friendlyware for their full replacement value against loss, theft, destruction, fire, water damage and other risks.

9.3. The Customer is responsible for backing up all data stored on its computer system(s) and network(s) and for protecting such data from loss, theft and destruction.

9.4. The Customer must take all reasonable measures to ensure that Friendlyware’s title to the Products is in no way prejudiced. If any of the Products are lost, destroyed or damaged, any insurance proceeds relating to the Products in respect of such event that are received by the Customer, must be paid to Friendlyware immediately on receipt.

10. GOODS AND SERVICES TAX

10.1. Unless specifically stated otherwise in a quote, GST is not included in the quoted price.

10.2. Where GST is imposed on Friendlyware in respect of the supply of Products and/or Services then the Customer must pay Friendlyware the amount of such GST in addition to the quoted price.

10.3. Friendlyware must give the Customer written notice of the amount of any GST payable under this clause provide a tax invoice showing the amount of GST payable.

11. NOTICE OF DEFECTS

Unless the Customer has given written notice to Friendlyware within seven (7) days:

11.1. after the installation or delivery of the Products that the Products are defective, faulty, damaged or not compliant with relevant specifications or descriptions in the Agreement, the Products are deemed to have been accepted in good order and condition and compliant with those specifications or descriptions; and

11.2. after the provision of the Services that the Services were not of the agreed standard, the Services are deemed to have been provided in a professional and workmanlike manner and compliant with the Customer’s instructions.

12. RETURN OF PRODUCTS

12.1. Subject to clauses 12.2 and 12.3, Friendlyware will only accept the return of any Products to it by the Customer, if:

12.1.1. the Customer has applied to Friendlyware for approval to return the Products within seven (7) days of collection or delivery, whichever is applicable;

12.1.2. Friendlyware has given written approval for the return of the Products;

12.1.3. the Customer has returned the Products to Friendlyware’s Premises (or such premises as are specified by Friendlyware in its approval referred to in clause 12.1.2) within fourteen (14) days from the date the approval is granted.

12.2. If Friendlyware agrees to the return of Products:

12.2.1. the Products, when received by Friendlyware, must be unsoiled, undamaged and in a resalable condition as determined by Friendlyware;

12.2.2. the Customer must pay for the delivery, freight, customs, duties, levies and/or insurance in respect of the return of the Products; and

12.2.3. the Customer must bear the risk of loss or damage of the Products in transit until arrival of the Products at the return address as advised by Friendlyware.

12.3. Friendlyware will not allow a credit or return of Products if the Products are:

12.3.1. imported especially for the Customer or comprise non-standard equipment made to special order; or

12.3.2. marked on Friendlyware’s invoices as “NOT RETURNABLE”.

13. DEFAULT / TERMINATION

13.1. Friendlyware may, at any time and without prejudice to any other rights which it may have against the Customer, terminate any Agreement relating to the Products and the bailment referred to in clause 6, and/or Services if:

13.1.1. the Products and/or Services are not paid for in accordance with these Terms or other applicable agreement, if any; or

13.1.2. the Customer is in breach of any provision of these Terms and such breach is not remedied within seven (7) days of a request by Friendlyware to do so; or

13.1.3. Friendlyware receives notice that, or reasonably believes that a third party may attempt to take possession of the Products or attach the Products pursuant to a writ of execution; or

13.1.4. any other event occurs which, in Friendlyware’s opinion, is likely to adversely affect the Customer's ability to pay for the Products and/or Services (including but not limited to the appointment of a receiver, administrator, liquidator or similar person to the Customer's undertaking).

13.2. The Customer may, subject to any separate agreement to the contrary, suspend or terminate its request for Services at any time without prior notice. In that event, the Customer will remain liable for all Charges up to receipt by Friendlyware of such suspension or termination.

14. FRIENDLYWARE’S LIABILITY LIMITED

14.1. The Customer acknowledges and agrees that:

14.1.1. the Customer has determined that the Products are fit for the purpose for which the Customer requires them; and

14.1.2. Friendlyware is not responsible if the Products do not comply with any applicable safety standard(s) or similar regulation(s), and that Friendlyware is not liable for any claim resulting from such non-compliance.

14.2. Friendlyware is not subject to, and the Customer releases Friendlyware from, any liability (including, but not limited to, Excluded Loss or Damage) arising from:

14.2.1. any delay in the supply of Products and/or the performance of the Services; and

14.2.2. fault, error or defect in the Products supplied and/or the Services performed, to the full extent permitted by law.

14.3. If the Terms or, despite clause 14.2, the provisions of the Competition and Consumer Act 2010 (Cth), the Sale of Goods Act 1923 (NSW) or any other act or general law impose a liability on Friendlyware for a defect or fault in the Products and/or Services then, to the extent to which Friendlyware is able to do so, Friendlyware’s liability under those provisions is limited, at Friendlyware’s option, to:

14.3.1. replacement or repair of the Products;

14.3.2. providing the Services again;

14.3.3. supply of equivalent Products; or

14.3.4. payment of the costs of replacing or repairing the Products or of acquiring equivalent products or having a third party supply the Products and/or perform the Services; or

14.3.5. a refund of moneys paid by the Customer to Friendlyware in respect of the Products and/or Services, and in any case,

14.3.6. Friendlyware will not be liable for any Excluded Loss or Damage; and

14.3.7. Friendlyware’s total liability to the Customer is limited to the value of the Products or Services, which are subject to the relevant claim, in the tax invoice issued in respect of those Products or Services.

15. INDEMNIFICATION

The Customer indemnifies and keeps Friendlyware indemnified from and against all losses, expenses, claims and demands (including but not limited to legal fees and disbursements on a solicitor-client basis), incurred, suffered or made against Friendlyware in connection with any:

15.1. conduct, including negligence, by the Customer in the Customer’s use of the Products and/or request for the Services;

15.2. infringement by the Customer of another person’s intellectual property rights;

15.3. acts and/or omissions by Friendlyware or its employees or agents in the supply of the Products and/or performance of the Services; and

15.4. representation, description, undertaking, warranty or promise in relation to the Products and/or Services, whether express or implied, other than as contained in these Terms.

16. WARRANTIES BY FRIENDLYWARE

16.1. Friendlyware warrants that the Services will be provided in a professional and workmanlike manner.

16.2. The Customer expressly acknowledges and agrees that it has not relied on, and Friendlyware is not liable for, any advice given by Friendlyware, its servants, agents, representatives or employees in relation to the suitability of the Products and/or Services for any purposes.

16.3. The provisions of any act or law (including, but not limited to, the Competition and Consumer Act 2010 (Cth) and the Sale of Goods Act 1923 (NSW)) implying terms, conditions and warranties, or any other terms, conditions and warranties which might otherwise apply to or arise out of the Agreement in relation to the Products and/or Services are hereby expressly negatived and excluded to the full extent permitted by law.

17. WARRANTIES BY THE CUSTOMER

The Customer warrants that it will not:

17.1. use the Products and/or request the Services for an illegal purpose;

17.2. interfere with or otherwise disrupt networks (including the internet) connected with the Products and/or Services;

17.3. use the Products and/or request the Services to infringe any third party’s intellectual property rights;

17.4. cause Friendlyware to install counterfeit, unauthorised, unlicensed or otherwise illegal copies and/or versions of software and/or other applications; or

17.5. use the Products and/or request the Services to infringe any third party’s rights of publicity and/or privacy.

18. PERSONAL PROPERTY SECURITY

The Customer acknowledges that if Friendlyware has a security interest in the Products and/or their proceeds for the purposes of the PPSA then Friendlyware may register its security interest in the Products and their proceeds on the PPSR and the Customer in accordance with section 157(3)(b) of the PPSA waives the right to receive notice of such registration. The Customer also undertakes, at its own expense, to promptly do anything (such as supplying information) which Friendlyware requests and reasonably requires the Customer to do for the purposes of ensuring that the security interest is enforceable, perfected or otherwise effective.

19. PRIVACY

19.1. Friendlyware will only disclose information about the Customer to third parties with the Customer’s consent or where this is incidental and necessary for supplying the Products and/or performing the Services.

19.2. Friendlyware will exercise due care to protect information about the Customer from unauthorised use and disclosure but will not be responsible for use or disclosure of information about the Customer in circumstances beyond Friendlyware’s reasonable control or where disclosure is required by law.

20. FORCE MAJEURE

Friendlyware will not be liable for any breach of contract due to any matter or thing beyond Friendlyware’s control (including but not limited to transport and supply stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, pandemics or epidemics, intervention of public authority including travel prohibitions and restrictions and lockdowns, explosion or accident).

21. WAIVER OF BREACH

No failure by Friendlyware to insist on the strict performance of any of the terms in these Terms is a waiver of any right or remedy which Friendlyware may have, and is not a waiver of any subsequent breach or default by the Customer.

22. NO ASSIGNMENT

Neither the Agreement nor any rights arising under the Agreement may be assigned by the Customer without the prior written consent of Friendlyware which is at Friendlyware’s absolute discretion.

23. SEVERABILITY

If any provision contained in these Terms is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.

24. ENTIRE AGREEMENT

These Terms contain the entire agreement between the Company and the Customer in relation to the supply of Products to and/or performance of Services for the Customer and supersede all previous agreements or understandings between the Company and the Customer in connection with the supply of Products and/or performance of Services.

25. AGREEMENT / GOVERNING LAW

25.1. The terms of the Agreement between the parties are wholly contained in these Terms and any other writing signed by both parties.

25.2. These Terms and any Agreement entered under or pursuant to these Terms is governed by the laws of New South Wales, Australia, and each party submits to the non-exclusive jurisdiction of the arbitration tribunals and to the courts of New South Wales, and any court that may hear appeals from any of those courts, and waives any right it might have to claim that those tribunals and courts are an inconvenient forum.