1. APPLICATION
1.1 These Standard Terms and Conditions of Sale (these Terms) apply to all sales of products and ad hoc services by Symsafe Pty Ltd (ACN 105 791 419) (Symsafe) to the customer identified on the relevant quotation, invoice, or order (Customer).
1.2 By placing an order, accepting a quotation, or accepting delivery of products or services, the Customer agrees to be bound by these Terms.
1.3 These Terms supersede any terms or conditions attached to or incorporated in a Customer’s purchase order or other document. Symsafe’s acceptance of a purchase order does not constitute acceptance of any such terms.
1.4 Where the Customer has entered into a Master Terms and Conditions agreement (SYM-MST-001) with Symsafe and there is an applicable Associated Agreement covering the relevant supply, the Master Terms and Associated Agreement prevail to the extent of any inconsistency with these Terms.
2. QUOTATIONS
2.1 Quotations are valid for 14 days from the date of issue, or until the end of the calendar month in which the quotation is issued, whichever is earlier, unless otherwise specified in the quotation.
2.2 Product specifications, pricing, and availability are subject to change without notice until a quotation is accepted.
2.3 Quotations are subject to these Terms.
3. ORDERS AND ACCEPTANCE
3.1 An order is accepted by Symsafe when Symsafe issues an order confirmation or invoice, or delivers the products or services, whichever occurs first.
3.2 Symsafe may decline any order at its discretion.
3.3 Once accepted, an order may only be cancelled with Symsafe’s written consent. Symsafe may charge a reasonable restocking or cancellation fee.
4. PRICING AND PAYMENT
4.1 All prices are in Australian dollars and are exclusive of GST unless expressly stated otherwise.
4.2 If GST is payable on a supply under these Terms, the Customer must pay an amount equal to the GST in addition to the price. Symsafe will issue a valid tax invoice.
4.3 Payment is due within 7 days of the date of invoice unless otherwise agreed in writing.
4.4 Products and any pre-delivery services will be invoiced on delivery. Other services and support tickets will be invoiced on completion.
4.5 Payment may be made by the methods notified by Symsafe from time to time (which may include electronic funds transfer, credit card, or other methods). Symsafe does not accept cash payments.
4.6 The Customer must pay all invoices in full without set-off or deduction of any kind.
5. OVERDUE PAYMENTS
5.1 If any amount is not paid by the due date, the entire balance outstanding becomes immediately due and payable.
5.2 Symsafe may charge interest on overdue amounts at the rate of 1.5% per month (or part thereof), calculated daily from the due date until payment is received in full.
5.3 If Symsafe engages solicitors or a collection agency to recover overdue amounts, the Customer must pay all reasonable legal fees, collection charges, and tracing agents’ fees incurred by Symsafe on a solicitor-and-own-client basis.
5.4 Payments received from the Customer will be applied first to recovery costs, then to interest, then to the oldest outstanding debt.
6. DELIVERY AND RISK
6.1 Symsafe will use reasonable endeavours to deliver products by any agreed date but is not liable for delays caused by matters beyond its reasonable control, including supplier or manufacturer delays.
6.2 Freight and delivery charges incurred by Symsafe will be invoiced to the Customer unless otherwise agreed.
6.3 Risk in products passes to the Customer on delivery to the Customer or into the Customer’s custody, whichever occurs first.
6.4 For products to be collected, Symsafe will notify the Customer when products are available. Orders not collected within 5 Business Days of notification may be returned to stock.
7. ACCEPTANCE OF DELIVERABLES
7.1 The Customer must inspect all products on delivery. Unless the Customer gives Symsafe written notice of any defect or non-conformity within 48 hours of delivery, the products are deemed accepted.
7.2 This clause does not limit any rights the Customer may have under the Australian Consumer Law.
8. RETENTION OF TITLE
8.1 Ownership of products does not pass to the Customer until all amounts owing by the Customer to Symsafe (whether under these Terms or otherwise) have been paid in full.
8.2 Until ownership passes, the Customer:
- (a) holds the products as bailee for Symsafe;
- (b) must store the products separately and in a manner that clearly identifies them as the property of Symsafe;
- (c) must not dispose of, encumber, or grant any security interest over the products except in the ordinary course of business; and
- (d) if the Customer sells the products in the ordinary course of business, holds the proceeds on trust for Symsafe and must keep proceeds in a separate account.
8.3 If the Customer fails to pay any amount when due, or suffers an Insolvency Event, Symsafe may:
- (a) require the Customer to return the products immediately;
- (b) enter the Customer’s premises (or any premises where the products are stored) and take possession of the products; and
- (c) retain, sell, or otherwise dispose of the products.
9. PERSONAL PROPERTY SECURITIES ACT
9.1 The Customer acknowledges that these Terms create a purchase money security interest (PMSI) in the products (and their proceeds) in favour of Symsafe under the Personal Property Securities Act 2009 (Cth) (PPSA).
9.2 The Customer must do all things and execute all documents reasonably required by Symsafe to enable Symsafe to perfect and maintain the perfection of its security interest, including registration on the Personal Property Securities Register (PPSR).
9.3 The Customer waives its right to receive a verification statement under section 157 of the PPSA.
9.4 To the extent permitted by law, the Customer agrees that the following provisions of the PPSA do not apply: sections 95, 96, 121(4), 125, 130 (to the extent it requires notice to the Customer), 132(3)(d), 132(4), 135, 142, and 143.
9.5 The Customer must not register a financing change statement or a change demand in respect of any security interest contemplated by these Terms without Symsafe’s prior written consent.
10. RETURNS
10.1 Products may only be returned with Symsafe’s prior written authorisation and in accordance with Symsafe’s returns policy (available on the Symsafe website or on request).
10.2 Products must be returned in original condition, with original packaging and all accessories. A restocking fee may apply.
10.3 This clause does not limit any rights the Customer may have under the Australian Consumer Law.
11. WARRANTY
11.1 Symsafe resells products manufactured or supplied by third-party manufacturers and vendors. Symsafe does not manufacture products and does not provide product warranties.
11.2 Product warranties are provided by the relevant manufacturer or vendor in accordance with their warranty terms. To the extent that manufacturer or vendor warranties are transferable or may be used for the Customer’s benefit, Symsafe will use reasonable endeavours to facilitate the Customer’s access to those warranty benefits.
11.3 Symsafe will use reasonable endeavours to assist the Customer with manufacturer or vendor warranty claims, including liaising with the manufacturer or vendor on the Customer’s behalf. This assistance does not create any warranty obligation on Symsafe’s part.
11.4 Defects in services provided by Symsafe (not product defects) that are reported to Symsafe in writing within 30 days of delivery will be rectified by Symsafe at no additional charge, provided the defect was not caused by:
- (a) external causes including accident, misuse, neglect, power surge, lightning, flood, fire, or natural disaster;
- (b) use of a product for other than its intended purpose or in a manner not approved by Symsafe;
- (c) connection of a product to items not approved by Symsafe or the manufacturer;
- (d) maintenance or repair by persons other than Symsafe or its authorised representatives; or
- (e) configuration or modification by the Customer or any third party without Symsafe’s written approval.
11.5 Nothing in these Terms excludes, restricts, or modifies any guarantee, right, or remedy conferred on the Customer by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted, or modified by agreement.
12. AUSTRALIAN CONSUMER LAW
12.1 Certain legislation, including the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)), implies guarantees, conditions, and warranties into contracts for the supply of goods and services that cannot be excluded (Consumer Guarantees).
12.2 Nothing in these Terms is intended to exclude, restrict, or modify the Consumer Guarantees.
12.3 To the extent permitted by law and subject to the Consumer Guarantees, Symsafe’s liability for breach of any condition or warranty not excluded by these Terms is limited, at Symsafe’s option, to:
- (a) in the case of products: replacement of the products, supply of equivalent products, repair of the products, or payment of the cost of replacing, acquiring equivalent, or repairing the products; and
- (b) in the case of services: supplying the services again, or payment of the cost of having the services supplied again.
13. LIMITATION OF LIABILITY
13.1 To the maximum extent permitted by law and subject to clause 12 (Australian Consumer Law):
- (a) Symsafe’s total aggregate liability under or in connection with these Terms, whether in contract, tort (including negligence), statute, or otherwise, is limited to the amount paid by the Customer to Symsafe under the relevant invoice giving rise to the claim;
- (b) Symsafe is not liable for any indirect, incidental, special, or consequential loss or damage, including loss of profits, revenue, business, opportunity, data, or goodwill, however arising;
- (c) Symsafe is not liable for any loss or damage caused by or arising from defects in products supplied by third-party manufacturers or vendors, except to the extent of Symsafe’s obligations under clause 12; and
- (d) Symsafe is not liable for any loss or damage caused (directly or indirectly) by the Customer’s failure to perform its obligations under these Terms.
13.2 Nothing in these Terms limits liability for fraud, wilful misconduct, or liability that cannot be limited by law.
14. INDEMNITY
14.1 The Customer indemnifies Symsafe against all claims, losses, damages, costs, and expenses (including legal costs on a solicitor-and-own-client basis) arising from or in connection with:
- (a) the Customer’s breach of these Terms;
- (b) the Customer’s use of products other than in accordance with the manufacturer’s specifications or Symsafe’s recommendations;
- (c) any third-party claim arising from the Customer’s use, resale, or distribution of products; and
- (d) any claim arising from the Customer’s failure to comply with applicable laws.
15. INTELLECTUAL PROPERTY
15.1 All intellectual property rights in products remain the property of the relevant manufacturer, vendor, or licensor. Software is licensed to the Customer on the terms of the relevant licence agreement provided with the products. Rights under software licences do not take effect until payment in full of all applicable charges.
15.2 Intellectual property rights in any services, deliverables, methodologies, tools, and know-how of Symsafe remain the property of Symsafe.
16. CONFIDENTIALITY
16.1 Each party must keep confidential all information disclosed by the other party that is not publicly available (Confidential Information) and must not use or disclose Confidential Information except as required for the purposes of these Terms or as required by law.
17. PRIVACY AND DATA PROTECTION
17.1 Each party must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in respect of any Personal Information handled in connection with these Terms.
17.2 Symsafe handles Personal Information in accordance with its Privacy Policy (available at symsafe.com.au/privacy-policy).
17.3 In the event of a data breach involving Personal Information, Symsafe will comply with its obligations under the Notifiable Data Breaches scheme (Part IIIC of the Privacy Act 1988).
18. TERMINATION AND SUSPENSION
18.1 Symsafe may, without prejudice to any other rights or remedies, by written notice to the Customer:
- (a) suspend further supply and require payment in advance for future supply;
- (b) terminate any accepted order;
- (c) require immediate payment of all amounts owing (which become immediately due and payable); and/or
- (d) exercise its rights under clause 8 (Retention of Title),
- if the Customer:
- (i) fails to pay any amount when due;
- (ii) breaches any of these Terms; or
- (iii) suffers an Insolvency Event.
18.2 Insolvency Event means any event where: a receiver or administrator is appointed, the Customer enters into liquidation or provisional liquidation, the Customer enters into a deed of company arrangement or composition with creditors, or the Customer is unable to pay its debts as and when they fall due.
19. FORCE MAJEURE
19.1 Symsafe is not liable for any delay or failure to perform its obligations under these Terms to the extent caused by an event beyond its reasonable control, including natural disaster, pandemic, war, government action, supplier failure, or infrastructure disruption.
20. GENERAL
20.1 Entire agreement: These Terms (together with any applicable quotation and invoice) constitute the entire agreement between the parties in respect of the relevant supply, subject to clause 1.4.
20.2 Variation: Any variation to these Terms must be agreed in writing by both parties.
20.3 Waiver: No waiver of any right under these Terms is effective unless in writing. A failure to exercise or delay in exercising a right does not constitute a waiver.
20.4 Severability: If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions continue in full force and effect.
20.5 Assignment: The Customer may not assign its rights under these Terms without Symsafe’s prior written consent.
20.6 Governing law: These Terms are governed by the laws of New South Wales, Australia.
20.7 Jurisdiction: The parties submit to the exclusive jurisdiction of the courts of New South Wales.
21. DEFINITIONS
In these Terms:
- “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
- “Business Day” means a day other than a Saturday, Sunday, or public holiday in New South Wales, Australia.
- “Consumer Guarantees” has the meaning given in clause 12.1.
- “GST” has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- “Insolvency Event” has the meaning given in clause 18.2.
- “Personal Information” has the meaning given in the Privacy Act 1988 (Cth).
- “PMSI” has the meaning given in clause 9.1.
- “PPSA” means the Personal Property Securities Act 2009 (Cth).
- “PPSR” means the Personal Property Securities Register.