Business Terms and Conditions - Australia
These Business Terms, together with any Quote (defined in clause 1), set out the agreement (Agreement) under the terms of which TEKZITEL PTY LTD ABN 17 625 820 886 (TEKZITEL) provides Products and/or Services (defined in clause 2) to you or the company which you represent (Client).
1. QUOTE, THIS AGREEMENT
(a) These Business Terms will apply to all the Client’s dealings with TEKZITEL, including being incorporated in all agreements, quotations or orders under which TEKZITEL is to provide products and/or services to the Client (each a ‘Quote’) together with any additional terms included in such Quote (provided such additional terms are recorded in writing).
(b) The Client will be taken to have accepted this Agreement if the Client accepts a Quote, or if the Client orders, accepts or pays for any products and/or services provided by TEKZITEL after receiving or becoming aware of this Agreement or these Business Terms.
(c) In the event of any inconsistency between these Business Terms and any Quote, the clauses of these Business Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Quote) will prevail over these Business Terms to the extent of any inconsistency.
(d) TEKZITEL may update any part of the Business Terms at any time without notice to the Client. The Client continuing to order, accept or pay for any products and/or services provided by TEKZITEL following such an update will represent an agreement by the Client to be bound by the Business Terms as amended. The Client is encouraged to check the date at the top of the Business Terms to see when TEKZITEL last updated the Business Terms.
(e) The Client is responsible for confirming that the Quote accurately specifies (if applicable):
(i) the quantity and Specifications of the Products and/or Services required; and
(ii) the agreed Fees and any other rates.
2. PRODUCTS AND SERVICES
(a) In consideration for the payment of the Grand Total Amount set out in the Quote (Fees), TEKZITEL will provide the Client with goods set out in a Quote (Products) and/or services set out in a Quote (Services).
(b) Where the context permits the terms ‘Products’ and ‘Services’ shall be interchangeable when used in this Agreement.
(c) Unless otherwise agreed, TEKZITEL may, in its discretion:
(i) not commence work on any Services until the Client has paid any Fees payable in respect of such Services; and
(ii) withhold delivery of Products until the Client has paid an invoice in respect of such Products.
3. CLIENT OBLIGATIONS
(a) (General) The Client must provide TEKZITEL with all documentation, information and assistance reasonably required for TEKZITEL to perform the Services.
(b) (Liaison) The Client agrees to liaise with TEKZITEL as it reasonably requests for the purpose of enabling TEKZITEL to provide the Services.
(c) (Instructions) The Client agrees to use the Products strictly in accordance with the manufacturer’s Instructions as set out for each Products. The Client acknowledges that failure to use the Products in accordance with the Instructions is likely to result in the Products not functioning properly or meeting the Specifications. The Client agrees that TEKZITEL will not be liable for any loss or damage arising out of the Client’s failure to use the Products in accordance with the Instructions and will indemnify TEKZITEL for such loss or damage.
(d) (Permits) If applicable, the Client warrants that they hold valid licences and are otherwise permitted to install any products purchased by the Client under a Quote (Permits). TEKZITEL reserves the right to request proof of such Permits, cancel any Quote in the absence of such Permits and charge administration fees if orders are placed for Products where the Client does not hold the relevant licence.
(e) (Compliance with Laws) The Client is responsible for complying with all applicable Laws, where ‘Laws’ means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Client receives the Products and/or TEKZITEL provides the Services.
4. CLIENT SUPPLIED GOODS AND EXISTING CONSTRUCTION
If the Client uses the Products in conjunction with any materials and/or goods supplied by the Client, for example where the Client attaches the Products to such materials and/or goods:
(a) the Client accepts the risk of defects or deficiencies in such goods and/or materials;
(b) TEKZITEL will not be required to investigate the suitability, quality or fitness for purpose of existing or proposed materials and/or goods;
(c) the Client will be required to pay the Additional Work Rate if it requests that TEKZITEL correct any defects or issues with such materials and/or goods.
5. SPECIFICATIONS AND QUALITY
TEKZITEL will use reasonable commercial efforts to ensure Products supplied to the Client under this agreement meet the Specifications as set out for each Products, however:
(a) the Client acknowledges that the numerical values included in the Specifications depend on a variety of factors beyond TEKZITEL’s control and are provided as a guide only; and
(b) TEKZITEL cannot guarantee that the Products will be consistent with the Specifications and will not be liable for any failure of the Products to meet the Specifications.
6. CHANGES
(a) The Client must pay additional service fees for changes to Services requested by the Client which are outside the scope set out in the relevant Quote (Changes) at the Additional Work Rate.
(b) Unless otherwise agreed in writing, TEKZITEL may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
7. PAYMENT
7.1 FEES
The Client must pay to TEKZITEL the Fees in the amounts, at the times and using the Fee Payment Method set out in the Quote or as otherwise agreed in writing.
7.2 INVOICES
Unless otherwise agreed in the Quote:
(a) if TEKZITEL issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
(b) in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.
7.3 EXPENSES
Unless otherwise agreed in writing:
(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by TEKZITEL in connection with a Quote; and
(b) any third party costs incurred by TEKZITEL in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Quote.
7.4 GST
Unless otherwise indicated, amounts stated in a Quote do not include GST. In relation to any GST payable for a taxable supply by TEKZITEL, the Client must pay the GST subject to TEKZITEL providing a tax invoice.
7.5 CARD SURCHARGES
TEKZITEL reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
7.6 LATE PAYMENT AND DEBT RECOVERY
If the Client does not pay an amount due under this Agreement on or before the date that it is due:
(a) the Client must pay TEKZITEL interest at the rate of 1% per month on the amount due, calculated daily;
(b) TEKZITEL may seek to recover the amount due by referring the matter to debt collectors;
(c) the Client must reimburse TEKZITEL for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under these terms; and
(d) the Client authorises TEKZITEL, its employees and agents to enter any premises occupied by the Client or any other place where Products are located and use reasonable force to retake possession of the Products without liability for trespass or any reasonable damage.
8. PRICING
(a) The Client acknowledges that despite TEKZITEL’s reasonable precautions, Products may be listed at an incorrect price, or with incorrect availability and/or other information, due to typographical errors and/or oversight. In such circumstances, TEKZITEL reserves the right to substitute the Products with a comparative product, if agreed by the Client or cancel Quote, even if the Quote has been paid for and previously accepted by TEKZITEL.
(b) If TEKZITEL cancels a Quote in accordance with 8(a), TEKZITEL will, as soon as practicable, contact the Client and issue a refund for any payment the Client has made for the cancelled order.
(c) TEKZITEL will endeavour to make any refund under this clause using the same payment method as the payment method used by the Client during the original purchase, however may vary this method at its discretion.
9. PRODUCT INFORMATION
TEKZITEL endeavors to ensure that the descriptions and Specifications in relation to the Products on its website or in catalogues are accurate. However, photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, descriptive literature or a catalogue are based on information provided by manufacturers and suppliers and, as such TEKZITEL does not guarantee that those descriptions and specification are accurate or free from errors or omissions. TEKZITEL reserves the right to make any necessary corrections to the descriptions or Specifications without notice.
10. TITLE AND RISK
(a) Until the price of Products is paid in full, title in those Products is retained by TEKZITEL.
(b) Risk in the Products will pass to the Client on delivery or on completion of purchase.
(c) If the Client fails to take the Products after the Client has completed the purchase, TEKZITEL may, at its option, keep or resell the Products provided that we provide the Client with a full refund (excluding any credit card surcharges or other transaction fees).
(d) If the Client does not pay for any Products on the due date for payment, the Client authorises TEKZITEL, its employees and agents to enter any premises occupied by the Client or any other place where the Products are located and use reasonable force to retake possession of the Products without liability for trespass or damage.
(e) TEKZITEL may at its option keep or resell Products retaken from the Client.
(f) If the Client sells Products or sells items into which Products are incorporated before payment in full to TEKZITEL, the Client acknowledges that such sale is made by the Client as bailee for and on behalf of TEKZITEL, to hold the proceeds of sale on trust for TEKZITEL, in an account in the name of TEKZITEL, and must pay that amount to TEKZITEL on demand.
11. DELIVERY
11.1 COST AND OBLIGATIONS
(a) Unless otherwise indicated, amounts stated in Quotes or on TEKZITEL’s website do not include delivery.
(b) For Products to be delivered, TEKZITEL will charge the Client for delivery (notwithstanding that it may not have previously done so).
(c) Delivery is to the delivery point specifically accepted by TEKZITEL.
(d) If TEKZITEL is unable to complete the delivery within the agreed time schedule due to the Client’s absence or other fault of the Client, the Client will be liable for all charges and costs incurred, including but not limited to warehousing, transportation and redelivery.
(e) If the Client organises delivery independently of TEKZITEL, TEKZITEL shall not be held liable for non-delivery, lateness of delivery or loss or damage of Products during transit.
(f) TEKZITEL may, at its discretion, deliver the Products to the Client in any number of instalments.
11.2 DAMAGE IN TRANSIT
Unless TEKZITEL is delivering the Products, TEKZITEL shall not be liable for loss of or damage to Products in transit and the Client must make all claims for such loss or damage against the carrier. TEKZITEL encourages the Client to take out insurance to protect itself for loss of or damage to Products in transit.
12. DEFECTIVE PRODUCTS AND ACCEPTANCE
12.1 DEFECTIVE PRODUCTS
Where the Client considers that any Products provided by TEKZITEL are defective, the Client must, within a reasonable time of receiving the Products, inform TEKZITEL of that fact in writing.
12.2 CLIENT’S OBLIGATIONS
Where Products are the subject of a notice under clause 12.1:
(a) the Client must, at TEKZITEL’s option:
(i) leave the Products in the state and condition in which they were delivered until such time as TEKZITEL or its duly authorised agent has inspected the Products; or
(ii) send TEKZITEL photographs, descriptions or other material evidencing the defects in the Products at TEKZITEL’s email address specified in the Quote;
(b) TEKZITEL will inspect the Products and/or evidence of defects in the Products within a reasonable time after notification by the Client; and
(c) if paragraph 12.2(a) is not complied with, the Client will be taken to have accepted the Products and TEKZITEL will be entitled to the price for the Products set out in any Quote.
12.3 CALL-OUT FEE
TEKZITEL reserves the right to charge the Client a call out fee, if upon inspection of the Products in accordance with clause 12.2(a)(i), TEKZITEL determines that the Products are not defective in accordance with clause 12.5.
12.4 REPAIRS OR REPLACEMENTS OF DEFECTIVE GOODS
Subject to clause 12.2, if, upon inspection, in the reasonable opinion of TEKZITEL:
(a) the Products are defective; and
(b) the Products were not damaged by the Client and/or the Client did not fail to take reasonable steps to prevent the Products from becoming damaged; or
(c) the Products are otherwise not in conformity with the Quote, then at the discretion of the Client, TEKZITEL will:
(i) replace the Products or supply the equivalent of the Products;
(ii) repair the Products;
(iii) pay the Client the cost of replacing the Products or acquiring equivalent Products; or
(iv) pay the Client the cost of having the Products repaired.
12.5 GOODS CONSIDERED NOT TO BE DEFECTIVE
If, upon inspection, in the reasonable opinion of TEKZITEL,
(a) the Products are not defective; or
(b) the Products are defective due to an act or omission of the Client, misuse, failure to use in accordance with the manufacturer’s Instructions, or failure to take reasonable care by the Client; and
(c) the Products are otherwise in conformity with the Quote, TEKZITEL will refuse the Client’s return, the Client will be taken to have accepted the Products and TEKZITEL will be entitled to the price for the Products set out in any Quote.
12.6 ACCEPTANCE
Except where notice has been given in accordance with clause 12.1, acceptance of the Products is deemed for all purposes to have taken place:
(a) when the Client makes known to TEKZITEL that it has accepted the Products;
(b) when the Client, after delivery of the Products, does any act in relation to them which is inconsistent with TEKZITEL’s ownership of the Products; or
(c) upon the expiry of seven days from the date of delivery, whichever first occurs.
12.7 WEAR AND TEAR
Products that have been subject to regular wear and tear will not be considered to be defective.
13. THIRD PARTY GOODS AND SERVICES
(a) Any Service that requires TEKZITEL to acquire goods and services supplied by a third party on behalf of the Client may be subject to the terms & conditions of that third party (Third Party Terms), including ‘no refund’ policies.
(b) The Client agrees to familiarise themselves with any Third Party Terms applicable to any such goods and services supplied and, by instructing TEKZITEL to acquire the goods or services on the Client’s behalf, the Client will be taken to have agreed to such Third Party Terms.
14. PERSONAL PROPERTY SECURITIES
The Client grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, in relation to any personal property, including any debts owed to the Client, in favour of TEKZITEL to secure the performance of its liabilities and obligations under this Agreement.
If requested by TEKZITEL the Client must immediately sign any documents, provide all necessary information and do anything else required by TEKZITEL to ensure that the security interest created in TEKZITEL’s favour is a perfected security interest.
The Client must not grant any other security interest in favour of any party until TEKZITEL has perfected its security interest created under these Terms.
The Client must not do or permit anything to be done that may result in the security interest granted to TEKZITEL ranking in priority behind any other security interest.
The Client acknowledges that these Terms constitute a security agreement for purposes of the PPSA and the Client will do all things necessary to enable a security interest to be registered under the PPSA, and will comply with all requirements of the PPSA.
To the fullest extent permitted by the PPSA, the Client agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.
The Client hereby waives any rights the Client may otherwise have to:
(a) receive any notices or statements the Client would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
(b) apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
(c) object to a proposal of the Client to purchase or retain any collateral under sections 130 and 135 of the PPSA; and
(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
For the purpose of this clause and other relevant clauses in this Agreement, “PPSA” means the Personal Property Securities Act 2009 (Cth) and “PPS Register” means the register established and maintained under that Act. The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.
15. CONFIDENTIALITY
(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any confidential information disclosed to it by the other party without its prior written consent.
(b) This clause 15 does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by TEKZITEL to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
16. INTELLECTUAL PROPERTY
16.1 CLIENT CONTENT
(a) The Client grants to TEKZITEL (and its subcontractors, employees and agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any part of the Services.
(b) The Client:
(i) warrants that TEKZITEL’s use of Client Content as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and
(ii) will indemnify TEKZITEL from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.
16.2 DEVELOPED IP
All Developed IP will be solely and exclusively owned by TEKZITEL.
16.3 TEKZITEL WORK IP
(a) TEKZITEL grants to the Client a non-exclusive, royalty free, non-transferable and revocable license to use TEKZITEL IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or the Deliverables.
(b) Unless otherwise agreed in writing by TEKZITEL or in this clause 16.3, the Client will not acquire Intellectual Property Rights in any TEKZITEL IP under this Agreement or as part of receiving the Services.
16.4 DEFINITIONS
For the purposes of this clause 16:
(a) “Client Content” means any Material supplied by the Client to TEKZITEL under or in connection with this Agreement, including any Intellectual Property Rights attaching to that Material.
(b) “Developed IP” means any Products and any other Material produced by TEKZITEL in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material or the Deliverables.
(c) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the start date set out in a Client Form, whether registered or unregistered.
(d) “TEKZITEL IP” means all Material owned or licensed by TEKZITEL that is not Developed IP and any Intellectual Property Rights attaching to that Material.
(e) “Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.
17. WARRANTIES
17.1 TEKZITEL WARRANTY AGAINST DEFECTS
(a) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(i) to cancel your service contract with us, and
(ii) to a refund for the unused portion, or to compensation for its reduced value.
(b) You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
(c) In addition to these warranties, we provide a 1 year warranty against defects subject to the conditions set out in the warranty document you may find in Schedule 1. In the event of any inconsistency between these Business Terms and the warranty contained in Schedule 1, the clauses of these Business Terms will prevail to the extent of such inconsistency.
17.2 EXCLUSION OF ALL OTHER WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement or a Quote are excluded.
(b) Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, TEKZITEL’s liability for breach of that non-excludable condition, warranty or guarantee will, at TEKZITEL’s option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair or a refund to the value of the goods; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again or a refund to the value of the services.
18. LIMITATION OF LIABILITY
To the maximum extent permitted by law, TEKZITEL’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement:
(a) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
(b) is limited, insofar as it concerns other liability, to the total money paid to TEKZITEL under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
(c) Nothing in this agreement is intended to limit the operation of the Competition and Consumer Act 2010 (Cth).
19. INDEMNITY
The Client indemnifies and holds harmless TEKZITEL from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(a) any breach of this Agreement by the Client; or
(b) any negligent, fraudulent or criminal act or omission of the Client or its personnel; or
(c) the failure of the Client to use the Products in accordance with the Instructions.
20. SUBCONTRACTING
TEKZITEL may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
21. TERMINATION
21.1 TERMINATION FOR CONVENIENCE
TEKZITEL may terminate this agreement for convenience at any time by providing 1 months’ written notice to the Client.
21.2 TERMINATION FOR CAUSE
Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party is in breach of this agreement and either:
(a) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
(b) that breach is not capable of remedy.
21.3 EFFECT OF TERMINATION
Upon termination of this agreement:
(a) TEKZITEL will refund any amounts paid by the Client for goods or services not provided as at the date of termination;
(b) the Client must pay all amounts owed for goods or services already provided as at the date of termination;
(c) each party must return all property of other parties to those respective parties;
(d) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party; and
(e) no rights, liabilities or remedies of any party will be invalidated by the termination.
21.4 SURVIVAL
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
22. DISPUTE RESOLUTION
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c) The parties acknowledge that compliance with this clause 21 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause 21.
23. FORCE MAJEURE
(a) If a party becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to an event beyond its reasonable control (Force Majeure), that party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure; and
(ii) so far as is known, the probable extent to which that party will be unable to perform or be delayed in performing its obligation.
(b) Subject to compliance with clause 23(a), the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.
(c) The affected party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.
24. NOTICES
A notice or other communication to a party under this agreement must be:
(a) in writing and in English; and
(b) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond for the purposes of the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(c) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
25. GENERAL
25.1 GOVERNING LAW
This Agreement is governed by the law applying in New South Wales, Australia.
25.2 JURISDICTION
Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
25.3 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
25.4 RELATIONSHIP
(a) Nothing contained in this Agreement creates an agency, partnership, joint venture or employment relationship between TEKZITEL and the Client or any of their respective employees, agents or contractors.
(b) Neither party nor any person acting on its behalf may hold itself out as being entitled to contract or accept payment in the name of or on account of the other party.
25.5 WAIVER
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
25.6 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
25.7 ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.
SCHEDULE 1 – TEKZITEL WARRANTY AGAINST DEFECTS
WARRANTY
Warranty and Warranty Period
TEKZITEL guarantees that it’s Products comply with the Specifications in its offers for a period of one (1) year from the date of delivery, shipping document giving evidence (“the Warranty Period”), provided that they are handled, shipped, stored, operated, used and maintained according to the Instructions in TEKZITEL User´s Handbooks. Therefore, TEKZITEL assumes liability only for non-conformities caused by actions or negligence attributable to TEKZITEL before the Products were delivered to the first carrier.
Customer/OEM Customer shall check deliveries immediately after reception at destination and shall inform TEKZITEL in writing within seven (7) days about any apparent non-conformity. After such term, Customer/OEM Customer shall not be entitled to bring any claim regarding quantitative shortcomings or apparent non-conformities which should have been noticed during unboxing/unpacking, and TEKZITEL shall not be obliged to accept return of such Products. Claims for hidden defects or qualitative non-conformities must reach TEKZITEL in writing within thirty (30) days after Customer/OEM Customer learned of the non-conformity, and in any event, within the Warranty Period.
Warranty Procedure
The following procedure shall apply to any non-conformity notified to TEKZITEL within the Warranty Period:
– Customer/OEM Customer shall report any alleged non-conformity to TEKZITEL´s After Sales Service via mailto:support@TEKZITEL.comincluding a detailed list of all alleged non-conformities;
– TEKZITEL shall count on five (5) banking days to reply, either by admitting the claim, or by rejecting it;
– If the claim is admitted, TEKZITEL shall notify its acceptance to Customer/OEM Customer and shall choose, at its discretion, either to replace or amend the non-conforming Product at no additional cost to Customer/OEM Customer. The – Warranty Period of any replacing Product shall be the same remaining for the replaced Product;
– Lack of answer by TEKZITEL within the term expressed above shall be deemed as a rejection of Customer/OEM Customer´s claim. Any cost resulting from analysis or essays to ascertain if non-conformity exists, shall be paid by TEKZITEL – should the result show Product non-conformity and by Customer/OEM Customer in case they are conforming;
– Replacement Products may be either new or equivalent in performance to new. TEKZITEL does not warrant:
(i) that the components in any replacement Product come from the same supplier or are exactly the same as in the replaced Product; nor
(ii) that the operation of Products will be uninterrupted or error free. Products may contain remanufactured parts equivalent to new in performance or may have been subject to incidental use.
Shipping and examination costs under the Warranty
Repair service can be obtained by sending the non-conforming Product to TEKZITEL (shipping costs pre-paid), only after a Return Merchandise Authorization (RMA) number is obtained from TEKZITEL´s After Sales Service, according to the instructions in our website. Some of our Products are protected with a safety seal and by removing this seal, Customer/OEM Customer shall be waiving this Warranty. If the Product is found upon examination by TEKZITEL to be defective, TEKZITEL shall bear shipping costs incurred in returning the Product to Customer/OEM Customer, as well as all costs involved in TEKZITEL’s examination of the Product. If the Product is found upon examination by TEKZITEL to be conforming, Customer/OEM Customer shall bear shipping costs incurred in returning the Product. TEKZITEL may, at its discretion, demand the Product claimed to be non-conforming to be inspected or tested by an independent third party acceptable to TEKZITEL.
Scope of the Warranty
The scope of this Warranty is limited to hardware components in the main board, sensor board and radio shields, manufactured by TEKZITEL.
Warranty exclusions
This Warranty does not apply to non-conformities resulting from:
Hardware. Any hardware component manufactured by third parties, either integrated in the Products or sold together with the Products as a kit, and namely, but not limited to:
Batteries (performance and life)
Any external component which get deteriorated through normal wear and tear, such as antennas, sensor probes, solar panels, connectors, etc;
Any perishable component, such as calibrated gases sensors, which lose a small percentage of its original calibration monthly.
Software. TEKZITEL hereby waives any warranty concerning software developed or cloud services provided by third suppliers or partners, including but not limited to communication stacks included in radio modules or in digital sensor probes. Access to such software or services is solely provided to facilitate operation of the Products by Customer/OEM Customer and to these effects, Customer/OEM Customer must check and accept the terms and conditions of use by each supplier or partner. Software adapted or developed by TEKZITEL for its Products is offered “as is” without any express or implied warranty. TEKZITEL hereby advices Customer/OEM Customer to avoid using this software for medical and health applications and, in general, in any critical system on which human lives or public health may depend (nuclear power plants, reservoir lock gates, security systems, etc.)
Installation, maintenance, calibration and use. TEKZITEL hereby waives any Warranty concerning non-conformities arising from:
– Improper storage;
– Failure to follow installation Instructions in User´s Handbooks. Liability should be claimed from the company carrying out installation (i.e. parking projects, where TEKZITEL´s Instructions are to demarcate each parking space and install the node in the middle of such space);
– Bad/lack of maintenance: User´s Handbooks contain guidance on periodical maintenance (cleaning sensors with water, removing dust from filters, etc.). Liability should be claimed from the company carrying out maintenance, or directly from end-user if there is no such maintenance service;
– Wrong Product calibration;
– Unauthorized modification or misuse;
– Operation outside of the published environmental Specifications for the Products;
– Damaged materials or parts as a result of normal wear and tear;
– Poor/Faulty performance of the products in which the Products are embedded by Customer/OEM Customer;
– Non-conformities and defects which are proved to have been caused by actions or negligence committed after the Products were delivered to the first carrier;
– Non-performance or faulty performance of the Products as a result of radio-frequency use restrictions or power broadcasting restrictions in any given country;
– Any connectivity error resulting from poor coverage and attributable to the connectivity services supplier;
– Ingress of dust and/or water resulting from poor closing of the parking node enclosure, and attributable to the company/ ies programming the node or performing installation;
– Inadequate Product voltage selection by Customer/End Customer.
Product Certification. Detailed information about the certifications of the Products can be found in the respective Technical Guides. TEKZITEL does not warrant that the Products count on specific product certifications required in any given country, so it´s Customer/OEM Customer´s responsibility to check whether the Products can be imported and resold in the intended country of destination.
External Agents. Damages caused to the Products by external agents, such as, but not limited to animals or weather condition (lightning, storm, wind, flooding, fire…), shall be considered as Force Majeure events, not covered under the Warranty.
Product voltage options. There are 110 V and 220 V Product options. It is the responsibility of the Customer/End User to select the adequate voltage for the country of intended use.
Liability Waiver
Under no circumstance shall TEKZITEL be liable for indirect, incidental or consequential damages caused by the Products, including but not limited to loss of data or of profit.
Customer/OEM Customer is responsible and liable to end users for any warranty given in excess of this Warranty and shall indemnify and hold TEKZITEL harmless for any unauthorized warranty provided.
Customer/OEM Customer agrees to defend, indemnify and hold TEKZITEL harmless from all claims, injuries, costs, expenses and damages, including attorneys’ fees, resulting from:
– any warranties or representations concerning the Products, either expressed or implied, made by Customer/OEM Customer or their employees, which are beyond TEKZITEL´s Warranty Policy;
– any distribution or sale of the Products by Customer/OEM Customer or their employees for a purpose or application that has not expressly been agreed upon by TEKZITEL;
– any alteration of the Products by Customer/OEM Customer or their employees that has not expressly been agreed upon by TEKZITEL;
– failure by Customer/OEM Customer or their employees to maintain the Products in saleable condition;
– any fault made by Customer/OEM Customer or their employees during checking, testing or embedding of the Products;
– any action brought against TEKZITEL by Customer/OEM Customer’ s employees.
– any claim brought by Customer/OEM Customer´s customers for injuries or damages of any kind (including but not limited to loss of or physical damage to the customer’s tangible property, personal injury, death or economic loss), caused by products in which the Products have been embedded by Customer/OEM Customer.
- This warranty is in lieu of all other warranties, expressed or implied, and no representative or person is authorized to assume for TEKZITEL any other liability in connection with the sale of the Products. In the event of a warranty claim TEKZITEL’s entire and sole responsibility to Customer/OEM Customer is as set forth above. No claims based on product liability shall be accepted by TEKZITEL in cases different than the ones established in the preceding paragraphs.