Standard Terms & Conditions
Welcome to Position Partners.
All products and services supplied by Position Partners to our customers are supplied in accordance with these Master Terms and Conditions unless a separate overriding written contract has been entered into with Position Partners, in which case, that separate contract will be applicable.
What is covered by these Master Terms and Conditions?
Position Partners supplies a range of Products and Services. To give our customers flexibility we supply by sale, rental, planned and responsive technical support, granting user access and licences to our expert technology and other support arrangements.
These Master Terms and Conditions cover all the ways we provide our solutions to our customers – adapting to suit your circumstances.
The Master Terms and Conditions are divided into 4 sections as follows, each section will apply depending on the nature of the products or services you purchase from Position Partners and how you choose to contract with us.
How these Master Terms and Conditions apply?
All the solutions we provide our customers are governed by these Master Terms and Conditions unless a separate overriding written contract has been entered into with Position Partners.
This means that unless we have entered a separate overriding written contract:
- when we provide proposals or quotes to our customers they are provided based on these Master Terms and Conditions applying to that sale, rental or other offer set out in the proposal;
- if you, as our customer, issue us a Purchaser Order or other purchase document these Master Terms and Conditions will apply to the supply of products and solutions the subject of the purchase order; and
- all other supplies of products and solutions delivered or carried out by Position Partners for its customers are governed by these Master Terms and Conditions.
Section 1–General Terms
“Additional Terms” mean Section 2 – Additional Terms for sale of Products and related Services; Section 3 – Additional Terms for Rental of Products; or Section 4 – Additional Terms for use of or access to Solutions, Data and Software Services as applicable to the relevant circumstances of the sale or transaction between Position Partners and the Customer.
“Business Day” means a day that is not a Saturday, Sunday or Public Holiday in the place in which any relevant act is to be or may be done.
“Cancellation Cost” means the costs incurred by Position Partners due to the return of Goods by the Customer which is calculated as a sum equivalent to ten (10) per cent of the amount to be paid to Position Partners by the Customer for the Transaction.
“Change Order” means a detailed estimate of the cost of a change and any alteration of the delivery schedule resulting from a change prepared by Position Partners under clause 4.1. together with any changes to such detailed estimate on which Position Partners and the Customer agree in writing.
“Collateral Documents” means any sale delivery dockets, goods order, quotations, invoices, guarantees, approved Credit Application or other documents which form or describe the subject matter of the Transaction entered into in accordance with these Master Terms and Conditions, but does not include any descriptions, illustrations and performances contained in catalogues, price lists and advertising material. To the extent any purchase order or other document produced by the Customer constitutes acceptance of these Master Terms and Conditions, it shall fall within this definition to that extent but not otherwise.
“Credit Application” means any application for credit made by the Customer to Position Partners.
“Goods” means any goods provided by Position Partners to the Customer for purchase, rental or licence.
“GST” means goods and services tax within the meaning of the New Tax System (Goods and Services Tax) Act 1999.
“Interest” means interest on any payment owing under this Agreement calculated in accordance with clause 10.2.1(ii).
“Master Terms and Conditions” means this document, which the Additional Terms form part of, as varied from time to time.
“Parties” means both Position Partners and the Customer.
“Permissible Delay” means any of the following events:
- Any failure by the Customer to fulfill any of its obligations under this Agreement or act by Customer that interferes with Position Partner’s ability to perform its obligations under this Agreement;
- A Force Majeure event;
- In the event any permit, license or governmental clearance or approval that Position Partners is required to obtain is not issued to Position Partners for any reason; or
- Suspension or postponement of the scheduled delivery times by the Customer.
“Personal Information” has the same meaning as in the Privacy Act 1988 (Cth).
“PPSA” means Personal Property Securities Act 2009 (Cth).
“PPSA Information” means any information or documents (including copies of those documents), which are in existence or may be entered into in the future, of the kind mentioned in section 275(1) PPSA.
“Section 2 – Additional Terms for sale of Products and related Services” means the terms and conditions set out in Section 2.
“Section 3 – Additional Terms for Rental of Goods” means the terms and conditions set out in Section 3.
“Section 4 – Additional Terms for Solutions, Data and Software Services” means the terms and conditions set out in Section 4.
“Services” means any services provided by Position Partners to the Customer.
“Transaction” means any transaction between Position Partners and Customer under these Master Terms and Conditions, including but not limited to the purchase, sale, hire, rental or provision of Goods and/or Services.
In this Agreement, except where the context otherwise indicates:
a) a reference to a clause, annexure or party is a reference to a clause of, annexure of or party to, this document and references to this document include any annexures;
b) a reference to a collateral document or agreement (including a reference to this document) is to that document or agreement as amended, supplemented, varied or replaced;
c) a reference to a statute or regulation includes a reference to that statute or regulation as amended from time to time, and any enactment consolidating or replacing that statute and any regulations, rules or other delegated legislation made under that statute;
d) if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day;
e) a reference to a person includes a natural person, corporation, trust, partnership, unincorporated body, parties to a joint venture, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;
f) a reference to ‘month’ means calendar month;
g) the word “includes” or “including” indicates examples, but is not a word of limitation and examples given do not imply a restriction to a particular class or category;
h) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
i) the singular includes the plural and vice versa; and
j) a word indicating a gender includes the other genders.
2.1.1 From time to time, the Customer may make orders or requests for Position Partners to supply Goods and/or Services in any manner permitted by Position Partners which may include:
(i) the Customer accepting a quotation for Goods and/or Services issued by Position Partners to the Customer; and/or
(ii) the Customer issuing Position Partners a purchase order requesting Position Partners to supply Goods and/or Services.
2.1.2 The Customer agrees that all supplies of Goods and/or Services made by Position Partners under each order or request will be governed by these Master Terms and Conditions (including where applicable the Additional Terms) and the Customer will therefore be bound by this Agreement.
2.2 Other terms and conditions
2.2.1 The Customer and Guarantor acknowledge and agree that these Master Terms and Conditions (including where applicable the Additional Terms) govern all supplies of Goods and/or Services by Position Partners to the Customer unless a separate overriding written contract has been entered into between the Customer and Position Partners. To avoid doubt, no additional terms or conditions imposed by the Customer or Guarantor (whether in writing or otherwise, including any contained in any purchase order or other document generated or produced by the Customer) shall be binding.
2.2.2 To the extent that there is any discrepancy or inconsistency between these Master Terms and Conditions, the Additional Terms, and/or any Collateral Document, such discrepancy or inconsistency shall be resolved by applying the terms in the following order:
(i) these Master Terms and Conditions;
(ii) the Additional Terms; and
(iii) thereafter, the terms of any Collateral Document.
In supplying Goods and/or Services, the Customer agrees to pay to Position Partners:
3.1.1 the price of the Goods and/or Services purchased by the Customer applicable on the date the Transaction is accepted by Position Partners in writing, unless otherwise agreed in writing between the Customer and Position Partners;
3.1.2 where there is no formal transaction documents, the amount set by Position Partners in any quote, proposal or other written document; and
3.1.3 the amount contained on invoices rendered on the Customer from time to time.
3.2 Credit and Payment
3.2.1 Upon completion by the Customer of Credit Application, a copy of which is available at www.positionpartners.com.au, a credit facility may, in the sole and absolute discretion of Position Partners, be made available to the Customer. The Customer is not entitled to any credit or use of other funds from Position Partners until Position Partners accepts a Credit Application by formal written notice to the Customer from a properly authorised credit officer stating that a credit facility has been made available and the limit. Position Partners may, acting in its sole and absolute discretion, and without being obliged to do so:
(i) specify the maximum amount that may be charged to the credit facility within a specified time (Credit Limit); and
(ii) regularly assess the Credit Limit and adjust it accordingly by increasing or decreasing it, or changing these terms.
3.2.2 The Customer must not charge to the credit facility amounts that exceed the Credit Limit. To the extent that it does, Position Partners is entitled to immediate repayment of any and all amounts charged to the credit facility in excess of the Credit Limit.
3.2.3 If the personal guarantee on the Credit Application is selected, in consideration of Position partners supplying the Goods or Services and a credit facility to the Customer, the guarantors jointly and severally guarantee payment to Position Partners of all money due and payable by the Customer to Position Partners on any existing or future account or in any manner whatsoever.
3.2.4 Payment shall be made by the Customer to Position Partners:
(i) on the issuing of a tax invoice by Position Partners to the Customer;
(ii) where the tax invoice specifies a time for payment, within that time specified or if no time is specified, immediately upon Position Partners providing the tax invoice;
(iii) where Position Partners requires, prior to Position Partners providing any Goods or providing any Services to the Customer, in which case such advance payment must be received by Position Partners in cleared funds as a condition precedent to any liability by Position Partners arising under the Transaction;
(iv) where agreed by Position Partners in writing with the Customer, in such instalments as it may agree to accept from time to time;
(v) in the case of ongoing Services being provided, at such time as Position Partners requires payments to be made; and
(vi) in any case, in such amount and at such times as may be agreed by Position Partners in writing with the Customer.
3.2.5 Any amount for any Goods and/or Services given by Position Partners to the Customer shall, unless stated otherwise, be exclusive of GST. The Customer agrees that it shall be responsible for the payment of any GST to Position Partners on the provision of a tax invoice.
3.2.6 Position Partners may allocate payments made by the Customer to Position Partners under these Master Terms and Conditions, or any other deed or agreement with Position Partners, to any obligation owed by the Customer to Position Partners at Position Partners’ sole discretion.
4.1.1 The Customer may request Position Partners to alter, add to, or deduct from the Goods and/or Services via a Change Order. Position Partners will not be required to alter, add to, or deduct from the Goods and/or Services if to do so would, in the opinion of Position Partners, have an adverse effect on the performance of the Goods and/or Services or Position Partners’ ability to meet any warranty or guarantee.
4.1.2 Position Partners shall be entitled to a Change Order:
(i) in the event of delay or increase in cost to Position Partners from any Permissible Delay, or any suspension of manufacture or delivery of the Goods required by or attributable to the Customer; or
(ii) where Position Partners determines it is necessary in all the circumstances including but not limited to where a variation to the Goods and/or Services provided is required to ensure compliance with changes in laws or regulations.
4.1.3 If a change is requested under clause 4.1 or Position Partners is entitled to a Change Order under clause 4.1.2, Position Partners shall prepare a detailed estimate of the cost of such change and any change that will be required in the delivery timings. Position Partners will not be required to many any changes under clause 4.1 until Position Partners and the Customer have agreed to a Change Order. Customer shall promptly agree to Change Orders under clause 4.1.2 that will provide Position Partners with a fair and equitable adjustment to the Price and the delivery timings, which shall, at a minimum, include reasonable costs, overhead and expenses plus fifteen percent (15%) of such costs, overhead and expenses. Position Partners shall provide Customer with such documentation as Customer may reasonably request to support a Change Order. Any Change Order shall be deemed an amendment to this Agreement.
4.2 Time for performance
4.2.1 Position Partners will carry out its supply under this Agreement during usual business hours for the branch from which the supply is to be carried out unless otherwise agreed.
4.2.2 The Customer must ensure that Position Partners has access to its site, the relevant work area and equipment as is safe and reasonably necessary for Position Partners to supply the Goods and Services.
4.2.3 Position Partners will deliver the Goods to the delivery place specified in the Transaction, or if no place for the delivery of the Goods is specified:
(i) Position Partners will notify the Customer promptly when the Goods are ready for collection at Position Partners; and
(ii) the Customer must promptly (and within 48 hours) collect its Goods from the Position Partners premises specified in the Contract.
4.2.4 If no place for the carrying out of Services is specified in the Transaction, they will be carried out at a suitable and convenient location as determined by Position Partners acting reasonably.
4.2.5 If a date or dates for delivery of the Goods or completion of the Services is specified in the Transaction, Position Partners will use its best commercial efforts to deliver or complete by those dates. If no date or dates for delivery or completion are specified in the Transaction, Position Partners will deliver the Goods and complete the Services with due diligence, expedition and without delay. However, the Customer must still accept delivery of the Goods even if late and Position Partners will not be liable for any loss or damage incurred by the Customer because of the delivery being late.
For the purposes of the following clauses, “Accession”, “Commingled”, “Financing Change Statement”, “Financing Statement”, “Fixture”, “Perfected”, “Personal Property”, “Proceeds”, “Purchase Money Security Interest”, “Security Interest” and “Verification Statement” have the respective meanings given to those terms by the PPSA.
5.2 Security Interest
The Parties acknowledge that the Transactions entered into pursuant to these Master Terms and Conditions may constitute Security Interests (which may be Purchase Money Security Interests) in the Goods (and any Proceeds in relation to the Goods) in favour of Position Partners.
5.3.1 Position Partners retains title to any Personal Property delivered under these Master Terms and Conditions until the Customer has:
(i) paid in full and without any deduction whatsoever any monies referable to the Personal Property for which Position Partners has a Security Interest; and
(ii) paid any and all other money owed without any deduction whatsoever by the Customer to Position Partners (whether under these Master Terms and Conditions or otherwise); and
(iii) otherwise complied with each and every obligation the Customer or Guarantor has under these Master Terms and Conditions.
5.3.2 Once the Customer takes possession of the Products, the Customer must store the Products:
(i) separately from other goods of the Customer, so that the Products are not mixed with those other goods; and
(ii) in such a way that the Products are recognisable as the property of Position Partners.
5.3.3 The Customer is liable for, and indemnifies Position Partners from and against, all loss or damage (including legal costs) incurred or suffered by Position Partners however caused in connection with Position Partners exercising its rights under this clause or attempting to do so.
5.4.1 The Customer and the Guarantor irrevocably consent to Position Partners:
(i) registering the Financing Statements on the Register as contemplated by this Agreement; and
(ii) doing all other things that are necessary to secure and Perfect, and continue to secure and Perfect, Position Partners’ Security Interest, to protect and preserve the Goods and to realise its Security Interest.
5.4.2 The Customer and the Guarantor agree to do anything (including obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which Position Partners asks and considers necessary for the purposes of:
(i) ensuring that the Security Interests are enforceable, Perfected and otherwise effective;
(ii) enabling Position Partners to apply for any registration, complete any Financing Statement or give any notification, in connection with the Security Interests; and
(iii) enabling Position Partners to exercise rights in connection with the Security Interests.
5.4.3 Position Partners is not required to give any notice, and the Customer waives its rights to receive any notice, under the PPSA (including notice of a Verification Statement) unless the notice is required by the PPSA to be given (even though the Parties have waived the right to receive notice).
5.5.1 The Customer must notify Position Partners as soon as the Customer becomes aware of any of the following:
(i) if any Personal Property which does not form part of the Goods becomes an Accession to the Goods and is subject to a Security Interest in favour of a third party;
(ii) if any of the Goods are located or situated outside Australia or, upon request by Position Partners, of the present location or situation of the Goods; or
(iii) if the Customer parts with possession of the Goods.
5.6 Customer’s Obligations
5.6.1 The Customer must not without the prior written consent of Position Partners:
(i) create any Security Interest or lien over any Personal Property that Position Partners has an interest in, including the Goods (other than Security Interests granted in favour of Position Partners);
(ii) sell, lease or dispose of its interest in the Goods whilst the Goods are the property of Position Partners;
(iii) give possession of the Goods to another person whilst the Goods are the property of Position Partners; or
(iv) permit the Goods to become an Accession to, Commingled with, or a Fixture to any asset or real property that is not part of Position Partners’ other Personal Property or real property.
5.6.2 The Customer must not change its name without first giving Position Partners twenty one (21) days’ notice of the new name or relocate its principal place of business outside Australia or change its place of registration or incorporation.
5.7 Failure to Comply
5.7.1 If the Customer fails to comply with any obligation under this Agreement then without limiting the remedies available to Position Partners:
(i) upon request by Position Partners, the Customer must return the Goods to Position Partners;
(ii) the Customer authorises Position Partners and any person authorised by Position Partners to enter premises where the Goods are located to take possession of the Goods; and
(iii) Position Partners may retain, sell, or otherwise dispose of the Goods.
5.8 Contracting Out
5.8.1 In accordance with section 115 of the PPSA, for any Goods supplied that are not products that are used predominantly for personal, domestic or household purposes:
(i) The Customer and Position Partners hereby agree to contract out of sections 95, 118, 121(4), 130, 132(4), 135, 142 and 143 of the PPSA; and
(ii) Position Partners waives any rights the Customer may have to:
(A) receive any notices the Customer may be entitled to receive under sections 95, 118, 121, 130, 132 or 135;
(B) receive a copy of any financing statement or any financing change statement registered by Position Partners, or any verification statement confirming such registration, in respect of any security interest Position Partners may have in the Goods;
(C) apply to a court for an order concerning the removal of an Accession under section 97;
(D) object to a proposal of Position Partners to dispose or retain any collateral under sections 130 and 135;
(E) to receive notice of removal of an Accession under the PPSA; and
(F) under Chapter 4 of the PPSA.
The Customer must pay all costs, expenses and other charges incurred, expended or payable by Position Partners in relation to the filing of a Financing Statement or Financing Change Statement in connection with this document.
5.10.1 Each party agrees to keep the PPSA Information in strict confidence and not disclose that information, except in circumstances required by sections 275(7)(b) or 275(7)(e) PPSA, however, where sections 275(7)(b) or 275(7)(e) require disclosure, the party that is required to disclose the information must give all available notice to the other parties to allow those parties to legally challenge the required disclosure and agrees to take all available steps (whether required by the other parties or not) to maintain that PPSA Information in confidence.
5.10.2 Each party agrees not to authorise the disclosure of any PPSA Information to any third party under section 275(7)(c) PPSA or to request information under section 275(7)(d) PPSA unless the other parties to this document explicitly agree.
To the extent that any of the Transactions under these Master Terms and Conditions provide for the Customer to have the benefit of Goods prior to payment (whether on credit terms or otherwise), the following clauses shall apply.
6.1 Position Partners retention of title
Position Partners and the Customer acknowledge and agree that:
6.1.1 In respect of Goods:
(i) the legal and equitable title, ownership and property in the Goods remains with Position Partners absolutely at all times until Position Partners has been paid in full for the Goods purchased by the Customer under all individual contracts, agreements or orders between Position Partners and the Customer;
(ii) the Customer is a trustee and bailee of the Goods and the proceeds received by or owed to the Customer from the sale of the Goods by the Customer must comply with clause 6.2;
(iii) the trust and bailment referred to in clause 6.1.2 continues in relation to separate purchases of Position Partners’ Goods Delivered to the Customer until the price for the Goods under all individual contracts, agreements or orders between Position Partners and the Customer has been paid in full;
(iv) the Goods are at the Customer’s risk on and from the time the Goods are Delivered to the Customer; and
(v) the Customer’s right to possession of the Goods immediately ceases if it does anything, or fails to do anything, which results, or would result, in an event occurring under clause 10 of these Master Terms and Conditions of sale.
6.1.2 In respect of Software or Services title, property and ownership in any Software or Services supplied by Position Partners including any Intellectual Property Rights, under these Master Terms and Conditions and any Transaction remains with Position Partners and does not pass to the Customer
6.2 Care of the Goods by the Customer
Until Goods are paid for in full, the Customer must:
6.2.1 not sell or supply any Goods to any person outside its ordinary or usual course of business;
6.2.2 not sell or supply any Goods to any person in its ordinary or usual course of business as an agent for Position Partners and agrees to:
(i) place any proceeds from the sale or supply of any Goods into a separate bank account, which is at all times identifiable as the money of Position Partners ensuring that none of the proceeds are mingled with any other money or deposited into any overdrawn account; and
(ii) pay to Position Partners the proceeds referred to in 6.2.2(i) on their due date for payment plus any Interest payable;
6.2.3 not allow any person to create, have or acquire any security interest in the Goods;
6.2.4 insure the Goods, in the name of the Customer and Position Partners, for their full replacement value with a reputable insurer and provide a certificate of currency of such insurance to Position Partners immediately upon written request by Position Partners;
6.2.5 properly and separately store and label the Goods Delivered so as to distinguish them from the Customer’s own goods, in a manner which makes them readily identifiable as Position Partners’ Goods.
6.2.6 where the Customer has not been paid for the Goods by a third party, agrees to assign its claim against that party to Position Partners upon Position Partners giving the Customer notice in writing to that effect.
6.3 Customer acknowledgments
6.3.1 The Customer acknowledges and agrees that Position Partners is not obliged or required to distinguish between Goods sold to the Customer pursuant to invoices which remain unpaid and Goods sold to the Customer pursuant to invoices which have been paid.
6.3.2 If the Customer fails to pay for any of the Goods by their due date for payment, or as otherwise agreed in writing between the Customer and Position Partners, Position Partners may enter the Customer’s premises, or the premises of any person holding the Goods for and on behalf of the Customer, during business hours without the requirement to provide any previous notice, for the purpose of auditing, inspecting or retaking and recovering possession of the Goods and the Customer hereby grants to Position Partners an irrevocable licence to do so without liability whatsoever, including but not limited to trespass or any resulting damage. The Customer agrees that Position Partners may use reasonable force in exercising its power of auditing, inspecting or retaking possession of the Goods under this clause.
6.3.3 The Customer acknowledges and agrees that 6.3.2 constitutes specific authority for Position Partners to enter the Customer’s premises, or the premises of any person holding the Goods for and on behalf of the Customer, for the purposes specified in 6.3.2 Position Partners may rely on 6.3.2 and this 6.3.3 against the Customer in the event of a dispute, mediation, arbitration or court proceeding with the Customer.
6.3.4 The Customer indemnifies Position Partners against any claim made by the Customer or a third party arising out of Position Partners exercising its rights under clause 6.3.2 and 6.3.3.
6.3.5 The Customer acknowledges and agrees that Position Partners will not be deemed to be relinquishing any of its rights as a creditor when exercising any of its rights as owner of the Goods under this clause 6, and its security interest shall continue in full force and effect.
6.3.6 The express and implied terms of this clause 5 continue even if any contract, agreement or order between Position Partners and the Customer is repudiated by the Customer. Position Partners does not relinquish any of its rights against the Customer until all monies due and payable to it by the Customer, are paid in full.
7.1 Liability of the Guarantor
In consideration of Position Partners entering into this Agreement with the Customer at the request of the Guarantor, the Guarantor:
7.1.1 acknowledges and agrees that he or she is jointly and severally liable with the Customer to perform the Customer’s obligations under this Agreement;
7.1.2 acknowledges and agrees that he or she is jointly and severally liable with the Customer to pay all amounts owing by the Customer to Position Partners under this Agreement; and
7.1.3 is jointly and severally liable with the Customer for and indemnifies Position Partners from and against, all loss or damage (including legal costs) however caused suffered or incurred by Position Partners in connection with:
(i) any failure by the Customer to pay Position Partners any amounts which are owing by the Customer to Position Partners under this Agreement;
(ii) any failure by the Customer to perform any of its obligations under this Agreement; or
(iii) Position Partners being unable to recover any amounts from the Customer which are owing by the Customer to Position Partners under this Agreement.
7.2 Extension of Liability
The Guarantor will still be liable under this Agreement even if:
7.2.1 Position Partners gives the Customer extra time to pay any amount which is owing by the Customer to Position Partners under this Agreement;
7.2.2 Position Partners notifies the Customer that it does not have to pay any amount which is owing by the Customer to Position Partners under this Agreement;
7.2.3 Position Partners delays in taking action to enforce this Agreement;
7.2.4 this Agreement is changed;
7.2.5 Position Partners increases the amount that is owing by the Customer under this Agreement;
7.2.6 a person who was intended to sign this Agreement does not do so; or
7.2.7 anything else happens which would otherwise have the effect of releasing the Guarantor from this clause 7.
7.3 Priority of Claims
Any claim which Position Partners may have against the Customer will take priority over any competing right of the Guarantor.
8.1 Customer warranties
8.1.1 In entering into the Transaction with Position Partners, the Customer shall be deemed to have warranted, represented, acknowledged and agreed as follows:
(i) the Customer has read and understands and wishes to be bound by the full terms, conditions and effect of these Master Terms and Conditions;
(ii) all purchases by the Customer under these Master Terms and Conditions are for commercial purposes only;
(iii) the person who signed any document relating to the Transaction was authorised by the Customer to do so;
(iv) the particulars contained in these Master Terms and Conditions are in all respects true and correct;
(v) the Customer relied solely on its own skill and judgement in entering into these Master Terms and Conditions and selecting the Goods and/or Services ordered by it;
(vi) Position Partners has not made any representation or promise to the Customer of any nature in respect of any matter arising out of these Master Terms and Conditions, including the entering into these Master Terms and Conditions;
(vii) these Master Terms and Conditions represents the entire Terms and Conditions as concluded between the Customer and Position Partners, and supersedes any other document, terms and/or conditions between the Customer and Position Partners;
(viii) no representation made by Position Partners or the Customer concerning the Goods and/or Services shall be an implied term of these Master Terms and Conditions or form the subject matter of a separate document, subsidiary or collateral with these Master Terms and Conditions;
(ix) the Customer has not been induced to enter into these Master Terms and Conditions by any representation, oral or otherwise, made for or on behalf of Position Partners;
(x) if a dispute arises between the Customer and Position Partners concerning any contract, agreement or order (including but not limited to telephone, facsimile or computer-generated orders), the internal records of Position Partners will be, except in the case of manifest error, conclusive evidence of what Goods and/or Services were ordered by the Customer;
(xi) each order it places with Position Partners will be, and be deemed to be, a representation by the Customer that at the time it placed the order for the purchase of the Goods, it was solvent and able to pay all of its debts as and when they fall due; and
(xii) failure by the Customer to pay Position Partners’ tax invoice on the date due for payment is conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in clause 8.1.1(xi).
8.2.1 The Customer acknowledges, agrees and warrants that any person who enters into any Transaction with Position Partners on behalf of the Customer:
(i) is authorised to place orders on behalf of the Customer;
(ii) is authorised to enter into a binding contractual relationship with Position Partners; and
(iii) in the event such person is not authorised to do the above, agrees to be liable for any and all losses incurred by Position Partners as a result, and shall assume all obligations the Customer would otherwise have in this Agreement.
The Customer must notify Position Partners of any change in its structure or management, including any change of director, secretary, partnership, trusteeship and business address.
9.1 Obligations of Confidence
Each party agrees to keep confidential, and not to use or disclose, any Confidential Information of the other party provided to or obtained by that party prior to or after entry into the Agreement.
9.2.1 The obligations of confidence in clause 9.1 do not apply to Confidential Information:
(i) that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:
(A) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
(B) before disclosing any information, gives a reasonable amount of written notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence;
(ii) that is in the public domain otherwise than as a result of a breach of the Agreement or other obligation of confidence; or
(iii) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.
9.3 Restriction on Disclosure
9.3.1 Each party may use and disclose Confidential Information of the other party only:
(i) with the prior written consent of the other party; or
(ii) to that party’s directors, agents, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under the Agreement.
9.3.2 If either party discloses Confidential Information under clause 9.3.1, that party must ensure that such information is kept confidential by the person to whom it is disclosed and is only used for the purposes of the exercise of rights or the performance of obligations under the Agreement.
9.4 Injunctive Relief
9.4.1 Each party acknowledges that:
(i) the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and
(ii) in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of this clause 9.
10.1.1 For the purposes of this clause, Event of Default means any one or more of the following with respect to the Customer and/or Guarantor:
(i) commits a breach of any term of these Master Terms and Conditions, or of any of the Additional Terms, or any other agreement which might be made with Position Partners from time to time;
(ii) without limiting clause 10.1.1, if any money becomes due to Position Partners which is not paid when due and payable, irrespective of whether or not Position Partners offers or agrees to extend the time for the payment to be made, or offers or accepts the money to be paid in a particular manner or on particular terms;
(iii) ceases to carry on its current business or a material part of its current business, or threatens to do either of these things;
(iv) has a judgment entered by any court for an amount exceeding $1,000 which is not satisfied within fourteen (14) days of such an order being made;
(v) if a corporate entity, then in accordance with the provisions of the Corporations Act 2001 (Cth):
(A) a statutory demand is served and not complied with within the period required;
(B) a resolution is passed, or an order is made, to wind up;
(C) a liquidator or administrator is appointed (whether voluntarily or not);
(D) an appointment is made for a provisional liquidator or provisional receiver to be appointed;
(E) a receiver and manager is appointed (whether by a court or other party);
(vi) if a natural person, then in accordance with the Bankruptcy Act 1966 (Cth):
(A) a bankruptcy notice is served and not complied with;
(B) a sequestration order is made; or
(C) a proposal is made, or any agreement is entered into, pursuant to Part IX or Part X of the Bankruptcy Act 1966 (Cth).
10.2 Consequences of Customer or Guarantor Event of Default
10.2.1 If the Customer or Guarantor commits an Event of Default, then without prejudice to any of the rights of Position Partners at law or under these Terms:
(i) any amount(s) owing to Position Partners by the Customer shall become immediately due and payable (including any amounts which Position Partners may have agreed to defer, enter into any arrangement as to payment, and any amount which may be payable by the Customer to Position Partners over a period of time);
(ii) Position Partners shall be entitled to Interest on any and all amounts due and payable by the Customer, from the date such payment was required to be made until the date payment is actually received by Position Partners in cleared funds, such Interest to accrue at the rate which is two (2) per cent higher than that fixed for the time being under the Penalty Rates Interest Act 1993 (Vic);
10.2.2 Position Partners may immediately cancel all outstanding Transactions made or placed by the Customer, without Position Partners incurring or being responsible for any penalty or liability for such cancellation;
10.2.3 The Customer and Guarantor agree to indemnify Position Partners from and against all costs, charges and expenses incurred by Position Partners resulting from any breach by the Customer of any of these Master Terms and Conditions, or the Additional Terms, including but not limited to legal costs and other recovery expenses on an indemnity basis.
10.2.4 If the Customer or Guarantor commits an Event of Default, Position Partners is not required to give any notice prior to exercising any one or more of its rights under these Terms or at law but if it does, it shall not be taken to expressly or impliedly have waived any of its rights.
10.2.5 Termination of this Contract shall not affect the rights and liabilities of Position Partners and the Customer in respect of this Contract accrued as at the date of termination.
10.2.6 Position Partners, acting pursuant to this clause, shall not be liable to the Customer or Guarantor for any loss and damage the Customer or Guarantor shall claim to have suffered.
11.1 Non-excludable obligations
11.1.1 Position Partners does not purport to exclude or limit the application of any provision of any legislation where to do so would contravene that legislation or cause part of this clause to be void. To the extent any of these clauses exclude a provision which would because the clause to be void, that part of the clause is to be severed from these Master Terms and Conditions, or if that part of the clause cannot be served, then the whole clause is to be severed.
11.2 Exclusion of consequential loss
11.2.1 To the full extent permitted by law, Position Partners is not liable to the Customer for any direct, indirect, consequential or contingent loss, liability, cost or expense from the use of the Goods by the Customer, its employees, servants, agents, representatives or any other party, and without limitation includes but is not limited to loss occasioned by defective design, workmanship or materials.
11.3 Position Partners limited warranties
11.3.1 The Customer acknowledges and agrees that:
(i) no supply or sale of any Goods by Position Partners to the Customer is, or amounts to a sale by description or a sale by sample;
(ii) the Customer has relied on its own knowledge and expertise when purchasing the Goods as to their suitability for any purpose;
(iii) Position Partners has not given any warranties or made any representations as to the suitability of the Goods for any purpose and no previous supplies or purchases of Goods by the Customer from Position Partners is indicative that the Goods are of a particular quality or type or suitable or fit for a particular purpose;
(iv) if there is a modification in the design or specifications of the Goods between the date on which the Goods Order was accepted by Position Partners and the date the Goods were Delivered to the Customer, due to a change in design or specifications by the manufacturer of the Goods, the Customer agrees to accept the Goods as modified;
(v) all Goods and/or Services are provided to the Customer on an “as is” and “without promise” basis, although Position Partners undertakes extensive checks and has backup systems and procedures, it assumes no responsibility for loss, deletion, missed delivery, timeliness or failure to provide, store or record any observations, measurements and information, and Position Partners does not warrant that the Services is error free.
11.3.2 Position Partners may offer a further limited warranty in relation to the Goods subject to conditions, at their sole discretion, such term to be included in the Collateral Documents giving rise to the Transaction.
11.4 Position Partners limits on liability
11.4.1 To the extent permitted by law, the liability of Position Partners, if any, arising out of or in connection with the supply of Goods or Services under this Agreement, including for negligence, is limited:
(i) In the case of Goods to which a manufacturer’s warranty applies or has applied but expired, to that warranty;
(ii) For any other Goods, at the option and in the reasonably discretion of Position Partners:
(A) To the replacement of the Goods or the supply of equivalent Goods;
(B) To the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(C) To the repair of the Goods by Position Partners or to the payment of having the Goods repaired; and
(iii) In the case of Services, at the option and in the reasonable discretion of Position Partners to a refund of the amount paid for the Services or to the supply of the Services again or payment for the cost of having the Services supplied again,
and in any other event and despite any other provision of this Agreement (including set out in any Collateral Document), to an amount not exceeding the limit set out in clause 11.4.3.
11.4.2 Despite any other provision of this Agreement (including set out in any Collateral Document) Position Partners will not be liable to the Customer, or any person claiming through the Customer for any loss or damage arising from suspension or termination of any of Position Partner’s obligations under this Agreement or any Collateral Document (where the same is based on a breach or anticipated breach by the Customer).
11.4.3 Notwithstanding any damages that the Customer might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract, negligence or else), the entire liability of Position Partners shall not exceed and be limited to $1,000.00 or 10% of the price of the Transaction giving rise to the said claim, whichever is the greater. The Customer must notify Position Partners of any claim, right, obligation or liability whatsoever arising under or in connection with the Agreement or any Goods or Services supplied by Position Partners within 12 months of when the Customer was aware or ought reasonably to have been aware of the events or circumstances giving rise to the claim. Any failure to do so, releases the other party from all liability in connection with that claim and its subject matter.
12.1.1 Position Partners will retain all proprietary rights (including copyright) in any of Position Partners’ confidential information and any of Position Partners’ material, including documents, drawings, certifications and instructions provided to the Customer.
12.1.2 The Customer must not use any of Position Partners’ intellectual property including copyright, patents, trademarks, logos, know-how and any other type of intellectual property belonging to Position Partners without the prior written consent of Position Partners (such consent may be granted or withheld in Position Partners’ absolute discretion).
12.1.3 Unless Position Partners grants its consent to the Customer, the Customer must not disclose, transfer, transmit or otherwise make available to any third party in any manner or form, any material or their contents or any information relating to them.
13.1.1 The Customer hereby charges with payment of all moneys and compliance with all obligations owed by the Customer to Position Partners under this Contract all beneficial interest (freehold and leasehold) in real property, held now or in the future by the Customer. The Customer agrees that if demand is made upon it, him or her by Position Partners, the Customer will immediately execute a mortgage in registrable form. The Customer unconditionally consents to Position Partners lodging a caveat or caveats noting its interest pursuant to this equitable mortgage. The Customer irrevocably and by way of security appoints Position Partners or any officer of Position Partners to be its, his or her true and lawful attorney to execute and register such instruments, including and without limiting the generality of the foregoing, executing and registering a mortgage over any real property. The Customer authorises the attorney appointed pursuant to this clause to enter into conflict transactions within the meaning of any applicable law.
13.1.2 Where there is a Guarantor, the Guarantor agrees that the above clause shall apply to them, and that any reference to the Customer in the above clause shall be read as though it were a reference to the Guarantor.
14.1.1 All notices and other written communications provided for in this Agreement shall be given or served by certified or registered mail with postage prepaid, by hand delivery or by email or facsimile transmission as follows:
14.1.2 if to Position Partners:
Address: 7 Transit Drive, Campbellfield, VIC 3061
Facsimile: +613 9930 7122
14.1.3 if to the Customer, to the address and facsimile number contained in this Agreement, Goods Order or Credit Application.
15.1.1 “Force Majeure” means the occurrence of an event or circumstance (“Force Majeure Event”) that prevents or impedes a party from performing one or more of its contractual obligations under the contract, if and to the extent that the party affected by the impediment (“the Affected Party”) proves:
(i) that such impediment is beyond its reasonable control; and
(ii) that it could not reasonably have been foreseen at the time of the conclusion of the contract; and
(iii) that the effects of the impediment could not reasonably have been avoided or overcome by the Affected Party.
15.1.2 In the absence of proof to the contrary, the following events affecting a party shall be presumed to fulfil conditions 15.1.1(i) and 15.1.1(ii), and the Affected Party only needs to prove that condition 15.1.1(iii) is satisfied.
(i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilisation;
(ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy;
(iii) currency and trade restriction, embargo, sanction;
(iv) act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalisation;
(v) plague, epidemic, natural disaster or extreme natural event;
(vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy;
(vii) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises.
15.1.3 Where a contracting party fails to perform one or more of its contractual obligations because of default by a third party whom it has engaged to perform the whole or part of the contract, the contracting party may invoke Force Majeure only to the extent that the requirements under 15.1.1 are established both for the contracting party and for the third party.
The Affected Party shall give notice of the event without delay to the other party.
15.3 Consequences of Force Majeure
15.3.1 A party successfully invoking this Clause is relieved from its duty to perform its obligations under the Contract and from any liability in damages or from any other contractual remedy for breach of contract, from the time at which the impediment causes inability to perform, provided that the notice thereof is given without delay. If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches the other party. The other party may suspend the performance of its obligations, if applicable, from the date of the notice.
15.4 Temporary impediment
15.4.1 Where the effect of the impediment or event invoked is temporary, the consequences set out under clause 15.3.1 above shall apply only as long as the impediment invoked prevents performance by the Affected Party of its contractual obligations. The Affected Party must notify the other party as soon as the impediment ceases to impede performance of its contractual obligations.
15.5 Duty to mitigate
The Affected Party is under an obligation to take all reasonable measures to limit the effect of the event invoked upon performance of the contract.
15.6 Contract termination
Where the duration of the impediment invoked has the effect of substantially depriving the contracting parties of what they were reasonably entitled to expect under the contract, either party has the right to terminate the relevant Transaction by notification within a reasonable period to the other party. Unless otherwise agreed, the parties expressly agree that the Transaction may be terminated by either party if the duration of the impediment exceeds 120 days.
15.7 Unjust enrichment
Where clause 15.6 above applies and where either contracting party has by reason of anything done by another contracting party in the performance of the contract, derived a benefit before the termination of the contract, the party deriving such a benefit shall pay to the other party a sum of money equivalent to the value of such benefit.
Subject to clause 4, this document may only be amended by written agreement between all Parties.
16.2 Variation by Position Partners
16.2.1 Position Partners may at any time, by written notice to the Customer and the Guarantor, vary any part of this Agreement, including, without limitation:
(i) Varying the Terms and Conditions which form part of this Agreement; and
(ii) Adding additional standard terms and conditions of Position Partners to form part of this Agreement.
16.2.2 The Customer and the Guarantor are deemed to have accepted and agreed to any variation under clause 16.2.1 unless it notifies Position Partners otherwise within 14 days of the date of the notice referred to in clause 16.2.1.
16.2.3 Position Partners shall act reasonably in deciding whether to agree to a variation, as requested by the Customer.
Where this Agreement contemplates that Position Partners may consent to, elect, determine, approve, nominate, decide or consider any matter or thing, Position Partners may provide such consent or make such election, determination, approval, nomination, decision or consideration in its absolute discretion and conditionally or unconditionally without being required to give reasons or act reasonably, unless this Agreement expressly requires otherwise.
16.4 Assignment by Position Partners
16.4.1 Position Partners may assign this Agreement and the Terms and Conditions which form part of this Agreement or a right under this Agreement without the consent of the Customer.
16.4.2 If Position Partners assigns this Agreement and the Terms and Conditions which form part of this Agreement or a right under this Agreement, it may assign the benefit of any Security Interest to the assignee without the consent of the Customer and the Customer agrees to do all things necessary to give effect to such assignment.
16.5 No assignment by Customer or the Guarantor
The Customer and the Guarantor must not assign this Agreement or a right under this Agreement unless express consent is provided by Position Partners.
Position Partners may subcontract the performance of all or any part of Position Partners’ obligations under this Agreement.
16.7 Time not of the Essence
Time is not of the essence in the performance of obligations under this Agreement except in relation to performance of payment obligations.
16.8 No Agency
Unless expressly stated otherwise, this does not create a relationship of employment, trust, agency or partnership between the Parties.
Without limiting any other remedies available to Position Partners, if the Customer fails to pay any amount payable under this Agreement, the Customer must pay Interest on that amount.
The Customer is liable for, and indemnifies Position Partners from and against, all legal costs incurred by Position Partners in connection any claim or allegation by either party against the other party in connection with this Agreement including any claim or allegation that either party has breached this Agreement.
This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one document. The Parties may execute and exchange counterparts by electronic means.
16.12 No Merger
The rights and obligations of the Parties under this document do not merge on completion of any transaction contemplated by this document
16.13 Further Assurances
Each party must do all things necessary to give effect to this document and the transactions contemplated by it.
16.14 No Waiver
16.14.1 The failure of a party to require full or partial performance of a provision of this document does not affect the right of that party to require performance subsequently.
16.14.2 A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
16.14.3 A right under this document may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.
16.15.2 Position Partners warrants to the Reseller and Guarantor that it will comply, to the extent necessary, with the Credit Reporting Code. The Reseller and Guarantor agree and acknowledge that Position Partners may make a report to any credit reporting body in the event of default.
16.16 Joint and Several Liability
Where the Customer comprises more than one person, the provisions of this Agreement with respect to such party shall bind all those persons jointly and severally.
16.17 Dispute Resolution
If a dispute arises out of or relating to this Agreement, either party may notify the other party of the nature and particulars of the dispute, and the Parties must, within seven (7) days of the delivery of such notice, commence discussions to attempt to resolve the dispute in good faith, without the necessity of resorting to any formal proceedings.
16.18 Governing Law and Jurisdiction
Unless otherwise agreed in writing by Position Partners, at Position Partners sole election, the Laws of Victoria will govern this Agreement and the Reseller agrees to submit to the exclusive and non-exclusive jurisdiction of the courts of that jurisdiction.
16.19.1 If a provision of this Agreement is unenforceable, illegal, or void, that provision is severed, and the remaining provisions of this Agreement remain in force.
16.19.2 If any provision is or becomes illegal, unenforceable, or invalid in any jurisdiction, it is to be treated as being severed from this Agreement in the relevant jurisdiction, but the rest of this Agreement will not be affected.
Section 2 – Additional Terms for sale of Goods and related Services
Where the Customer is purchasing Goods and Services from Position Partners these Additional Terms apply to the purchase of Goods and Services.
This Annexure applies to:
1.1.1 all Goods purchased by the Customer either directly from Position Partners or via an authorised reseller of Position Partners; and.
1.1.2 all Services purchased by the Customer except:
(i) AllDayRTK® services;
(ii) Any service which utilises Tokara® (including Tokara® Link and Tokara® Tracking); and
(iii) Any other services which Position Partners provides to the extent such service includes the Customer’s use of Data and Software services.
NOTE: For services covered by 1.1.2(i), 1.1.2(ii) or 1.1.2(iii) Section 3 – Additional Terms for Solutions, Data and Software will apply.
2.1 Authority to trade-in
2.1.1 The Customer may trade-in any goods as part payment for Goods purchased by the Customer, only if:
(i) Position Partners agrees, in its absolute discretion, to accept the goods as a trade-in;
(ii) Position Partners agrees to the price to be paid by Position Partners for the goods to be traded-in, which price shall be a set-off against the amount payable by the Customer for the Goods purchased by the Customer.
2.1.2 In relation to any goods traded-in by the Customer under clause 2.1.1, the Customer:
(i) warrants that it has absolute right, title and interest in the goods to be traded-in; or
(ii) warrants the goods are free of every liability and encumbrance attaching to the goods to be traded-in; and
(iii) must provide documentary evidence of the trade-in goods being free of all encumbrances to Position Partners, on or before the trade-in of the goods, in a form acceptable to Position Partners in its absolute discretion, which in the case of the Customer being a company must include evidence that the goods to be traded-in are not subject to, or have been releases from, any charge, lien and/or security interest.
2.1.3 The Customer acknowledges and agrees that Position Partners has no obligation to Deliver any Goods to the Customer unless and until:
(i) the Customer has complied with clause 2.1.2 of these Section 2 Terms to the satisfaction of Position Partners, in its absolute discretion;
(ii) the Customer has delivered the goods to be traded-in to Position Partners in a condition which is acceptable to Position Partners, in its absolute discretion; and
(iii) Position Partners has notified the Customer that it has accepted the trade-in goods as part payment for the Goods purchased by the Customer.
2.1.4 Position Partners will record the trade-in of any Goods on any invoice issued to the Customer under these Master Terms and Conditions.
3.1 Delivery and completion
3.1.1 Position Partners shall deliver the Goods to the Customer in accordance with the Incoterm nominated in the relevant Collateral Document and where none is nominated Goods shall be delivered FCA (Free Carrier – Icoterms® 2020). Risk of loss and damage to and responsibility for shipment of the Goods shall be transferred to Customer upon delivery pursuant to the applicable Incoterm.
3.1.2 Delivery of the Goods is taken to occur in accordance with the relevant Incoterm. Where none is nominated delivery is taken to occur at the time that:
(i) the Customer or the Customer’s nominated carrier takes possession of the Goods at Position Partner’s address; or
(ii) Position Partners (or its nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
3.1.3 Any time or date given by Position Partners to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and Position Partners will not be liable for any loss or damage incurred by the Customer because of the delivery being late.
3.1.4 Legal title to beneficial ownership of right to possession of the Goods shall be in accordance with clauses 5.3.1 and 6.1 of the Master Terms and Conditions.
3.1.5 Where the Transaction requires Position Partners to perform Services, Position Partners will notify the Customer, orally or in writing, promptly when it considers (acting reasonably) that that the Services have been completed.
3.1.6 The Customer must promptly:
(i) inspect any Goods on delivery; and
(ii) inspect any Services following the notice being given by Position Partners under clause 3.1.5
and notify Position Partners of any non-compliance with this Agreement (or any Collateral Document) within seven (7) days from delivery of the Goods or the notice of completion of Service given (as the case may be).
3.1.7 Unless Position Partners receives a notice under clause 3.1.6, within the time required by that clause, the Customer is deemed, to the extent relevant to have accepted that the Goods comply with and have been delivered in accordance with this Agreement and certified that the Services have been completed in accordance with this Agreement.
3.2 Claims for non-conformance
3.2.1 If Position Partners receives a claim from the Customer under clause 3.1.6 within the time required by that clause:
(i) Position Partners must promptly rectify the Goods and/or reperform the Services so that they comply with the Agreement; or
(ii) Instruct the Customer to return the Goods to Position Partners to either receive a credit for their return or to receive replacement Goods for their return provided that the returned Goods are received by Position Partners in good saleable condition (except to the extent damaged by Position Partners) and in its original packaging and with the original invoice.
3.2.2 The liability of Position Partners in the event of a claim by the Customer for any alleged damaged Goods or non-confirming Services discovered within the seven (7) day period set out in this clause 3 will be limited, at the discretion of Position Partners to:
(i) the replacement value of those Goods; or
(ii) the costs of reperforming the Services; or
(iii) the supply of equivalent Goods,
provided there is evidence that Position Partners caused the damage through its negligent act or omission.
4.1.1 Position Partners warrants and the Customer agrees that:
(i) In relation to Services, that for a 12 month period following the date of completion of those Services, that those Services were carried out and completed with due skill and care, in a proper and workmanlike manner and in accordance with all relevant law;
(ii) In relation to Goods supplied by Position Partners to which a manufacturer’s warranty applies, that the benefits and obligations of the manufacturer’s warranty apply in all respects and is the sole and exclusive warranty for those Goods; and
(iii) In relation to new Goods supplied by Position Partners to which a manufacturer’s warranty does not apply that for a 12 month period (unless otherwise specified) following the date of delivery, those Goods will be free from defects in materials and workmanship and to the extent designed by Position Partners will be fit for the purpose specified in the Agreement. of the Goods offer a limited warranty of up to two (2) years in relation to the Goods subject to the manufacturer’s conditions.
4.1.2 Position Partners may offer extended warranties in accordance with the warranty documents provided to the Customer at the time of the Transaction.
4.1.3 Unless the warranty documents provided by Position Partners at the time of the Transaction expressly provide otherwise:
(i) The Customer must notify Position Partners of any event or circumstance which may give rise to a warranty claim promptly and within the time expressly required by the manufacturer’s warranty for the notification of claims, if any time applies.
(ii) Warranties provided by Position Partners shall:
(i) Instrument batteries including internal and external standard batteries.
(ii) Screen protectors during annual service if required.
(iii) Standard cables.
(i) Tripods and bipods.
(iii) Prisms including 360 and mini prisms.
(iv) Hard cases and canvas bags.
(v) Non-standard external batteries or power systems including solar.
(vi) Field controller brackets and clamp.
(iii) Any warranty under this Contract excludes liability for costs in connection with:
(A) labour (including overtime labour) other than is reasonable or customary to rectify the defect;
(B) the removal or re-installation of parts and components, unless Position Partners carried out the original installation, and does the removal and installation of the replacements; and
(C) standby, freight, transportation, travel, travel time, packaging and handling, demobilisation and re-mobilisation, commissioning and testing.
5.1.1 The Customer agrees to return to Position Partners any pallets delivered to the Customer with the Goods in accordance with Position Partners’ written instructions for returning those pallets.
5.1.2 If the Customer loses, destroys or damages any of Position Partners’ pallets, Position Partners has the right to recover from the Customer the cost of those pallets at the prevailing commercial rate for pallets on the date the pallets were lost, destroyed or damaged. This cost may be recovered by Position Partners from the Customer as a liquidated debt.
6.1.1 The Customer may terminate or cancel a Transaction by written notice to Position Partners given no later than fourteen (14) after the date of the Customer taking delivery of the Goods and subject to Position Partners accepting such cancellation and the Customer first making payments and arrangements for return of delivered Goods (if any) in accordance with clause 6.1.2 below.
6.1.2 In the event of termination of a Transaction, the Customer shall:
(i) pay to Position Partners:
(A) that portion of the Price corresponding to the production and delivery of any Goods delivered by Position Partners as of the date of termination.
(B) any amount paid or due to be paid by Position Partner to any subcontractor or supplier in connection with the Transaction, including any cancellation charges in the event that Position Partners is able to cancel any work due under any subcontract or the delivery of any part by a supplier;
(C) the repatriation of any personnel of Position Partners and/or subcontractor(s) from the Site and removal of any Position Partner’s property from the Site;
(D) the cost of satisfying all other obligations, commitments and claims that Position Partners may in good faith have undertaken with third parties in connection with the Transaction that are not covered by paragraphs 6.1.2(i)(A) to 6.1.2(i)(C) above; plus
(E) a cancellation fee equal to 10% of the Price of the Goods; and
(ii) where the Customer has taken delivery of the Goods, arrange, at the Customer’s own cost and expense, for the return of the Goods in as close a condition to that in which they were delivered as is possible to Position Partners in accordance with instructions given by Position Partners, and such returned Goods shall become the property of Position Partners upon Position Partners taking delivery of them.
6.1.3 Delivery of the Goods and performance of Position Partner’s other contractual obligation under the Transaction shall be discontinued following receipt by Position Partners of the cancellation notice (except for Goods already delivered or in the process of being delivered which cannot be reasonably stopped in which case clause 6.1.2(ii) will apply.
6.1.4 Upon payment by the Customer and return of any Goods in accordance with clause 6.1.2(ii), Position Partners shall refund any money the Customer has paid for the returned Goods and any Services or other obligations not yet performed by Position Partners under the Transaction.
6.1.5 For clarity, the Customer acknowledges and agrees that Position Partners may refuse to accept the return of Goods by the Customer if they have been used, are not returned in accordance with Position Partner’s instructions and/or it is longer than fourteen (14) days from delivery of those Goods.
Section 3 – Rental and Hire of Goods
Where the Customer is hiring goods from Position Partners these Additional Terms apply to that hire.
“Hire End Date” means the date specified by Position Partners as being the conclusion of the Customers rights to the Goods hired under the Terms and Conditions as specified in the relevant Collateral Document issued by Position Partners to the Customer;
“Hire Period” means the period commencing on the Hire Start Date and ending on the Hire End Date;
“Hire Start Date” means the date specified by Position Partners as the date on which the rental of the Goods commences, or if no date is specified, the date on which the Customer takes delivery of the Goods from Position Partners;
“Customer’s Premises” means the premises owned or occupied by the Customer at which the Goods will be safely and securely stored in accordance with these Master Terms and Conditions;
“Return Date” means the date on which the Goods are to be returned to Position Partners by the Customer, and if none, then the Hire End Date;
“Specification” means the specification provided to the Hirer by Position Partners in respect of each Good (if any), as amended by Position Partners from time to time;
3.1 Extension by agreement
3.1.1 The Customer may extend the Hire Period upon request to Position Partners in writing, not less than thirty (30) days prior to the Hire End Date, and Position Partners may agree.
3.1.2 In the event Position Partners agrees, the Customer agrees that any extension to the Hire Period is subject to the Terms and Conditions and these Additional Terms.
3.2 Holding over
3.2.1 Upon expiration of the initial Hire Period, the Renter may continue renting the Goods on the same terms and conditions but the Hire Period will be deemed to be on a month to month basis only, and:
(i) Position Partners may terminate the Hire by giving the Customer 3 days’ prior written notice and on expiry, the Customer must immediately return the Goods to Position Partners and pay the rental charges specified in the relevant Collateral Document up to the time of the return of the Goods to Position Partners; and
(ii) the Customer may terminate the Hire by giving Position Partners 3 days’ prior written notice and on expiry the Customer must immediately return the Goods to Position Partners and pay the rental charges up to the end of the month in which the extended hire expired.
4.1.1 The Customer must only use the hired Goods and must maintain the hired Goods in accordance with the applicable Specification and any directions of Position Partners from time to time.
4.1.2 The Customer acknowledges that they will not interfere with or cause harm to any aspect of the hired Goods, including but not limited to interference with its firmware, hardware, and software or communication protocols.
The Customer acknowledges and agrees that:
5.1.1 The Customer has relied on its own knowledge and expertise as to suitability for purpose.
5.1.2 Position Partners gives no warranties or makes any claims as to the suitability of the Goods for any purpose. No previous supplies by Position Partners to the Hirer of any Goods is indicative that the Goods are of a particular quality or type or suitable or fit for a particular purpose.
6.1.1 The Customer acknowledges and agrees that it will:
(i) Keep and maintain the Goods in a first-rate condition subject to fair wear and tear.
(ii) Use the Goods as they would be used by a careful and prudent owner.
(iii) Not use the Goods for any illegal purpose.
(iv) Immediately report in writing should any damage, loss or theft occur to Goods rented from Position Partners. The replacement cost of Goods will be charged at current Replacement Cost plus associated charges and reference will be made to the respective contract.
(v) Not sell, mortgage, pledge, sublet, lend, charge or otherwise deal with the Goods in a manner which is inconsistent with the Hire Contract.
(vi) Be responsible for theft or damage to Goods and take out appropriate insurance, if necessary, whilst in their care.
(vii) Properly, safely and securely store the Goods when they are not being used in such a manner as to avoid damage, loss or theft.
(viii) Not alter, tamper with, or modify the Goods in any way.
7.1.1 The Customer acknowledges and agrees that:
(i) The Goods are always the property of Position Partners and the Customer has no legal claim to the Goods.
(ii) The Customer further acknowledges that they only have temporary possession of the Goods under these Master Terms and Conditions, and that it holds only a licence to use the Goods in accordance with these Master Terms and Conditions.
8.1.1 In addition to any other rights Position Partners retains the rights under the Terms and Conditions, to take all steps necessary to recover the Goods, including entering the Customers Premises to do so for the purpose of inspecting or recovering possession of the Goods. The Customer hereby grants to Position Partners an irrevocable licence to do so without liability for trespass or any resulting damage if the Customer is in breach of the Terms and Conditions.
8.1.2 The Customer acknowledges and agrees that clause 8.1.1 constitutes specific authority for Position Partners to enter the Hirer’s premises in the event of a dispute, mediation, arbitration or court proceeding with the Hirer.
8.1.3 The Customer indemnifies Position Partners against any liability, loss, damage, cost, expense, action, proceeding, or demand incurred, suffered or made by Position Partners or a third party arising out of Position Partners exercising its rights under clauses 8.1.1 and 8.1.2.
8.1.4 The Customer acknowledges and agrees that Position Partners would not be deemed to be relinquishing any of its rights as a creditor when exercising any of its rights as owner of the Goods under this clause.
8.1.5 Position Partners does not relinquish any of its rights against the Hirer until all monies due and payable to it by the Customer, whether under the Terms and Conditions or otherwise, are paid in full.
9.1.1 The Customer agrees to operate the Goods at its own risk.
9.1.2 The Customer hereby indemnifies and holds harmless Position Partners from all liabilities, losses, damages, costs, expenses, actions, proceedings or demands arising out of or in relation to:
(i) Damage to the Goods caused by the Customer or any other person;
(ii) Any loss or damage to any property of the Customer;
(iii) Any loss or damage to the property of any other person; or
(iv) The death of, or injury to, any person, resulting from the use of the Goods by the Customer.
9.1.3 To the full extent permitted by law, the Customer hereby releases and discharges Position Partners and its employees, contractors, and agents from:
(i) All claims and demands on Position Partners; and
(ii) Any loss or damage caused by Position Partners or its employees, contractors or agents including financial, consequential, or economic loss arising directly or indirectly from any cause.
9.1.4 The indemnities and assumptions of liability contained in this clause will continue in full force and effect notwithstanding the expiration or termination of the Terms and Conditions or the Hire Period.
10.1.1 Position Partners may affix on the Goods any plates, marks, logos or insignias indicating that the Goods are the property of Position Partners.
10.1.2 The Customer agrees not to remove, deface or in any other way obstruct the visibility of the plates, marks, logos or insignias affixed by Position Partners on the Goods.
11.1.1 Position Partners hereby authorises the Customer to operate radio communication devices under Section 114 of the Radiocommunications Act 1992 (Cth) (“the Act”) as applicable.
11.1.2 Customers operating the frequency(ies) must be aware and fully comply with all sections of the Act, including any applicable Licence Conditions Determinations made under the Act.
11.1.3 Customers must comply with all lawful and reasonable requirements of Position Partners in operating the frequency(ies).
11.1.4 Customers must only use the frequency(ies) as authorised under these Master Terms and Conditions and for the purposes contemplated by the hire of the Goods under these Master Terms and Conditions. Penalties under the Act may apply to companies and individuals.
11.1.5 On completion of the rental, the Customer must notify Position Partners and cease using any rented frequency(ies).
12.1.1 The Customer must, at its own cost, return the Goods to Position Partners by the Hire End Date to the Position Partners premises from where it was collected by the Customer on the Hire Start Date.
12.1.2 The Customer must ensure that the Goods is returned to Position Partners in the same condition it was delivered on the Hire Start Date (except for fair wear and tear).
12.1.3 The Customer indemnifies Position Partners for the cost of any renovations or repairs performed by Position Partners to return the Goods to the required return condition.
12.1.4 If the Customer fails to return the Goods when required or within 24 hours of oral or written demand by Position Partners the Customer will be deemed to be in unlawful possession of the Goods.
Section 4 – Solutions, Data and Software Services
Where Position Partners supplies the Customer with solution, Date and/or software or a combination of these Section 3 – Additional Terms for Solutions, Data and Software Services will apply.
These Additional Terms apply to any provision by Position Partners to a Customer of services which include solutions, Data and/or software, or a combination of the same, which may include:
1.1.1 AllDayRTK® services;
1.1.2 Any service which utilises Tokara® (including Tokara® Link and Tokara® Tracking); and
1.1.3 Any other services which Position Partners provide which require the use of Data and Software services.
“Agreement Form” means the document, which may be completed online or via hard copy, that includes any annexures or documents incorporated by reference which is also a Collateral Document for the purposes of the Terms and Conditions;
“AllDayRTK” means the infrastructure, software and method of providing GNSS augmentation corrections to a device;
“Cellular Data” means cellular data connection;
“Customer Data” means any electronic information generated by the Customer and hosted by Position Partners on its Hosting Service;
“Data” means Global Navigation Satellite System (GNSS) position correction information, recorded and distributed using a network of Continuously Operating Reference Stations (CORS) that receive satellite position, navigation and time information;
“Device” means Global Navigation Satellite System (GNSS) receiver hardware device, a hardware device running software, one or more wireless communication devices that supports connection to wireless services, collectively named a “Device”;
“GNSS” means Global Navigation Satellite System (GNSS) including the Global Positioning Service (GPS); Galileo, GLONASS, BeiDou and QZSS
“GNSS Augmentation” means a method of improving GNSS attributes such as accuracy, reliability and availability, through the integration of external information into the calculation and correction process.
“Hardware” means any Device provided to the Customer by Position Partners in connection with the Services or Support Services;
“Hosting Service” means providing a server to host Customer Data and related support information provided through this agreement;
“Initial Term” means the initial period of this agreement as described on the Support Agreement Form;
“Permitted Purpose” means the permitted purpose set out in clause 3.
“Renewal Term” means frequency or period of the billing/invoicing cycle as described on the Agreement Form;
“Services” mean the services to which these Additional Terms apply, as set out in the Application of Annexure above;
“Support Services” means any supplementary service offered by Position Partners to complement or assist a Service provided to the Customer (including but not limited to reporting and/or help desk);
“Subscription Fee” means the total amount payable by the Customer to Position Partners for the use of the Services pursuant to the Agreement, which is stated on the tax invoice supplied to the Customer;
“Third Party Data” means Data from supplementary service providers including Commonwealth and State governments, and others which may be offered from time to time;
“Tokara Link” means the infrastructure, software and method of providing remote connectivity to a device.
3.1.1 The Customer shall use any of the Services (including, but not limited to, Hosting Service, Hardware, and Support Services) for lawful business use only.
3.1.2 To the extent that any of the Services under these Additional Terms access Data then in addition to clause 3.1.1, the permitted use shall also include:
(i) for carrying out surveying and geodetic related activities and measurements of natural features, or artificial objects for determining positions of features and objects in either geodetic, topographical, cadastral, hydrographic or construction and engineering reference systems; including fit-for-purpose GNSS assisted navigation of agricultural, civil engineering, forestry, mining equipment and other like purposes;
(ii) but not for any safety of life application, in which the Services or Data are used in circumstances or situations where personal injury or death may occur, or where to do, use and/or rely on the same could endanger life.
4.1.1 For the purpose of this clause, a reference to “safety of life use” shall mean circumstances or situations where personal injury or death may occur, or where to do, use and/or rely on the same could endanger life, in connection with the Services.
4.1.2 Position Partners grants the Customer a non-exclusive, non-transferable right to access and use the Services, including but not limited to Cellular Data and Data, for the Permitted Purpose and for the duration of the Initial Term and any Renewal Term and shall exclude safety of life use (for the purposes of this clause, “Right to Access”).
4.1.3 The Customer may authorise employees, agents and servants associated with the Customer’s business to access and use the Services and/or Support Services under the Right to Access on the conditions that:
4.1.4 The Customer agrees to inform all such persons of any obligation created by the Terms and Conditions, and/or these Additional Terms, which operate as restrictions or conditions on the manner of use of the Services and/or Support Services; and
4.1.5 the Customer remains responsible for such persons compliance with the use (or misuse) of the Services and/or Support Services.
4.1.6 The Customer is permitted to access Services provided that it does not:
(i) Access or use the Data other than by or with a Device or Hardware owned and used by the Customer;
(ii) Where Position Partners provides one or more Devices, or Hardware, only by using the same unless Position Partners agrees otherwise in writing; or
(iii) Transfer, sublicense or resell the Services or content to another individual or entity.
4.1.7 The Customer acknowledges and agrees that if the Customer does not have the minimum hardware and software recommended by Position Partners, the Customer’s ability to receive the Software and the Services may be diminished.
4.1.8 The Customer must not resupply the Software or the Services to any third party and must only use the Software and the Services for its own benefit and the Permitted Purpose.
4.1.9 Any service levels nominated by Position Partners are non-binding targets only and Position Partners is not required to meet the service levels.
4.1.10 The Customer agrees to be entirely responsible for maintaining the confidentiality of usernames and passwords, and agrees that Position Partners may terminate the Service and disconnect access to the Services if the Customer fails to do so. Additionally, the Customer is fully responsible for any and all activities that occur under its usernames and passwords. The Customer agrees to notify Position Partners immediately of any unauthorised use of its usernames and passwords or any other breach of security. Position Partners will not be liable for any loss that the Customer may incur as a result of someone else using its usernames and passwords, either with or without its knowledge.
4.1.11 The Customer acknowledges that they are competent in the use and applications that they are undertaking in conjunction with application of the Services.
4.1.12 The Customer must use the latest version of the Software and not install upgrades in any order other than the order in which the upgrades were released by Position Partners.
5.1.1 The Customer acknowledges and agrees that if the Customer does not have the minimum hardware and software recommended by Position Partners, the Customer’s ability to access Position Partners’ servers and the Service may be diminished.
5.1.2 Any service levels nominated by Position Partners are non-binding targets only and Position Partners is not required to meet the service levels.
5.1.3 The Customer must not:
(i) Perform any illegal or unlawful acts in connection with receipt or use of the Hosting Service; or
(ii) Use the Hosting Service in any manner that is unacceptable to Position Partners.
5.1.4 Without limiting any other remedy Position Partners may have under the Terms and Conditions, the Additional Terms or at law, Position Partners may suspend the Customer’s use of the Hosting Service at any time, including if Position Partners suspects that the Customer is in breach of the Terms and Conditions or any Additional Terms.
6.1.1 If requested by the Customer, Position Partners may agree to perform services in addition to the Services (including installation of the Software on a Device, support services or customisations or enhancements to the Software).
6.1.2 Position Partners may from time to time provide training to the Customer in relation to the Software.
7.1.1 If the Customer cancels the Service, in whole or in part, before the end of the Initial Term or Renewal Term, the Customer agrees to pay all outstanding monies due in the agreement period, and will not be entitled to a refund.
7.1.2 The Agreement shall automatically renew as per the Renewal Term on the Agreement Form or the anniversary of the Subscription Fee being payable unless either party provides written notice of its intent to cancel the Services renewed under this clause. Renewal shall be on the same basis as set out in this Additional Terms (and the Terms and Conditions) unless variations are agreed in writing by Position Partners, save that the Subscription Fee for any Renewal Term may be varied by Position Partners.
8.1.1 The Customer acknowledges that copyright in the Third Party Data is owned by a third party. Position Partners warrants that it is permitted to supply the Third Party Data to the Customer but the Customer acknowledges that it may be required to enter a separate agreement with a relevant third party.
8.1.2 The Customer agrees to indemnify Position Partners against any liability, loss, claim or demand arising out of action or omission taken by the Customer with respect to the Third Party Data in breach of this Agreement.
8.1.3 The Customer acknowledges and agrees that terms contained within these Additional Terms are required by the Third Party, and accordingly, the indemnity in clause 8.1.2 shall extend to any loss, damage or claim made against Position Partners by the Third Party.
9.1.1 The Customer agrees to Position Partners’ Terms and Conditions of Purchase that form part of the Master Agreement.
9.1.2 The Customer agrees to pay the Subscription Fee specified in the tax invoice provided to the Customer by Position Partners.
9.1.3 Failure of the Customer to pay any Subscription Fee or any other money owing to Position Partners will entitle Position Partners to immediately deactivate access to the Services, including but not limited to Cellular Data and Data.
9.1.4 Re-activation of Services after a service has been deactivated or terminated due to clause 14 may incur a fee or charge as quoted at the time.
9.1.5 Access to Services is provided for fixed periods of time and at fees that are changed from time to time.
9.1.6 Position Partners may change the subscription fees from time to time with respect to Services which shall apply at the beginning of the Renewal Term.
10.1.1 The Customer acknowledges that they will not interfere with or cause harm to any aspect of the Data or the Services, including but not limited to interference with its data streams, hardware, and software or communication protocols.
10.1.2 The Customer agrees not to use the Services for any purpose that is unlawful or in breach of the Permitted Purpose. Position Partners may restrict access to the Services and Data or cancel the Licence and if there is a reasonable suspicion of, or any actual misuse or fraudulent use by the Customer.
10.1.3 The Customer will be responsible for any damage (including but not limited to costs and expenses) incurred by Position Partners or any other party as a result of any misuse or fraudulent use of the Services. Misuse or fraudulent use includes, but is not limited to:
(i) Using the Services in such a manner so as to interfere unreasonably with the use of Services and Data by one or more other users or wireless customers or to interfere unreasonably with the underlying telecommunication carrier’s ability to provide Services and Data;
(ii) Fraud or unauthorised access; or using the Services and Data without permission or on a stolen or lost Device;
(iii) Taking any action that imposes an unreasonable or disproportionately large load on Services, Data and essential infrastructure;
(iv) Tampering with or making an unauthorised connection to Services and Data;
(v) Store, supply, or sell any aspect of the Data, or combine it with any other data, text, imagery, service, database, system or application to create a product or part of a product which is the same or substantially similar to the Services provided;
(vi) Undertake data aggregation, data matching, marketing, compilation of mailing lists, list brokering or any related act with respect to the Data except to the extent the law requires (including any order of a court);
(vii) Reselling or re-billing Services and Data to any other individual or entity without the express authority of Position Partners;
(viii) Re-broadcasting Data without the express written permission of Position Partners; or
(ix) Use of Services and Data in any other unauthorised or illegal manner.
10.1.4 The Customer must not:
(i) Perform any illegal or unlawful acts in connection with receipt or use of the Software and the Service;
(ii) Use the Software and the Service in any manner that is unacceptable to Position Partners; or
(iii) Where any Data contains any time and/or date stamp embedded, the same shall not be removed.
10.1.5 Without limiting any other remedy Position Partners may have under these Additional Terms, the Terms and Conditions, or at law, Position Partners may suspend the Customer’s use of the Software and the Services at any time, including if Position Partners suspects that the Customer is in breach.
10.1.6 The Parties agree that although copyright in the Software is not infringed in the circumstances contemplated by sections 47D, 47E and 47F Copyright Act 1968 (Cth), the Customer agrees not to:
(i) Decompile disassemble or reverse engineer the whole or any part of the Software or Data provided under this agreement;
(ii) Use the Software, Services or Data other than for the Permitted Purpose;
(iii) Make any modification to the Software, Services or Data; or
(iv) Merge all or any part of the Software, Services or Data with any other software.
11.1.1 The Customer acknowledges that the Services coverage area and access to Data are subject to transmission limitations caused by a variety of factors such as atmospheric conditions and events like severe solar activity, topographical obstructions, limitations or lack of coverage of the underlying telecommunication carrier service and other natural or manmade conditions, including but not limited to, power outages, motor and ignition noise, metal shielding, interference by users of the same or adjacent radio channels that may limit network coverage or interfere with access to Services.
11.1.2 The Customer further acknowledges that Position Partners is not responsible for the operation or failure of operation of GNSS satellites or the availability of GNSS satellite signals.
11.1.3 Position Partners shall not be held liable by the Customer or any third party for any loss or damage arising from Services and Data, or its interruption, transmission errors, defects or any other cause, including, but not limited to, interruption caused by the underlying Telecommunication carrier or other service providers.
11.1.4 Position Partners does not assume and shall not have any liability for events beyond Position Partners’ control or the control of Position Partners’ subcontractors, or business partners, including, but not limited to, force majeure acts as described in the Terms and Conditions.
11.1.5 Position Partners has no control over, nor responsibility for any delays, limitations or deficiencies in any telecommunications equipment, telecommunications services or telecommunications coverage.
11.1.6 Position Partners may at any time discontinue or modify, enhance or make additions, permanently or temporarily, to all or any part of Services and Data.
11.1.7 The Customer does not have any contractual relationship with the underlying wireless service carrier and is not a third party beneficiary of any agreement between Position Partners and the underlying carrier.
11.1.8 The Customer understands and agrees that the underlying carrier had no legal, equitable, or other liability of any kind to the Customer for a claim arising in any way in connection with this agreement, for any cause whatsoever, including by not limited to any disruption to the services provided in these Additional Terms.
12.1.1 Where Customer Information is transmitted or displayed electronically in connection with the supply by Position Partners to the Customer of Goods and/or Services, the Customer agrees to release Position Partners and its officers, employees and agents from and against all liability arising from:
(i) any unauthorised copying, recording, reading or interference with the Customer Information;
(ii) any delay or non-delivery of any Customer Information;
(iii) any damage caused to its system or any files by transmitted Customer Information (including by any computer virus); and
(iv) the Customer Information, or the manner in which it is presented, being incomplete, inaccurate, or misleading
except to the extent that any of the matters outlined in paragraphs 12.1.1(i) to 12.1.1(iv) arises because of the wilful misconduct or negligent acts or omissions of Position Partners, its officers, employees and/or agents.
12.1.2 The Customer acknowledges that:
(i) Position Partners does not and cannot control the flow of data to and from Position Partners’ systems as such flow depends on the performance of computer hardware, internet services, hosting facilities and software provided or controlled by third parties, public internet infrastructure, and on other events beyond the reasonable control of Position Partners;
(ii) Position Partners may engage the services of third party service providers who may be located within and/or outside of Australia to undertake processing and/or to store Customer Information;
(iii) the action or inaction of third parties, hardware, software and power system problems with the public internet infrastructure or the Customer’s and/or Position Partners’ computing equipment, or other events beyond the reasonable control of Position Partners can impair or disrupt the Customer’s connection to Position Partners’ systems;
(iv) the transmission of data to and from Position Partners’ systems, or the display by Position Partners of any such data is subject to human and machine error, omission, delay and loss (including but not limited to viruses or inadvertent loss of data) that may give rise to loss or damage;
(v) Position Partners will not be liable for any such errors, omissions, delays or losses, except to the extent caused by its negligence or wilful misconduct or the negligence or wilful misconduct of Position Partners’ third party service providers engaged by Position Partners to provide services to the Customer (and subject then to all other limitations in these Master Terms and Conditions);
(vi) files stored on Position Partners’ servers will be deleted from these servers after 30 days of termination of the Hosting Service.
12.1.3 Position Partners warrants that it uses industry standard measures to protect the information that is provided by the Customer for storage on the systems operated or controlled by Position Partners from unauthorised use or access.
12.1.4 Position Partners warrants that the Customer’s information, documents and materials will be hosted in a specific and isolated platform, which will only be accessible by the Customer and by nominated Position Partners staff (necessary IT and technical staff).
13.1.1 This clause shall apply if Position Partners believes that the document or a transaction in connection with it is or contains a Security Interest or a Purchase Money Security Interest in favour of Position Partners.
13.1.2 For the purposes of this clause, any property which a Security Interest or a Purchase Money Security Interest could attach shall be included for the purposes of clause 5 of the Master Terms and Conditions as though a reference to that property was a reference included in the term Personal Property.
13.1.3 The Customer must not grant or allow another to hold a Security Interest in:
(i) the Software;
(ii) the Proceeds of the Software; or
(iii) any devices to which the Software are installed or affixed.
14.1.1 The Customer agrees not to use the Cellular Data for any purpose that is unlawful or in breach of the Permitted Purpose. Position Partners may restrict access to and/or suspend the Cellular Data service if there is a reasonable suspicion of, or any actual misuse or fraudulent use by the Customer.
14.1.2 The customer acknowledges and agrees that it if, in all of the circumstances having regard to the nature of the Services provided by Position Partners, it will use the Cellular Data reasonably. Should the customer use an excessive amount of Cellular Data having regard to the nature of the services, Position Partners would be entitled to render further charges in accordance with this clause 14.
14.1.3 If Position Partners reasonably believes that the Customer is in breach of this clause 14, the Customer must pay Position Partners the standard applicable retail rate of data usage calculated from the date of the breach.
14.1.4 If the Customer has already paid Position Partners for the Cellular Data service, the Customer must pay the difference between the standard applicable retail rate and the amount paid to Position Partners.
15.1.1 Position Partners does not warrant that it can provide continuous, uninterrupted or complete Services and makes no guarantees, representations or warranties pertaining to the integrity of the Services, expressed or implied, including but not limited to, the quality, effectiveness, reliability, completeness, accuracy or fitness for a particular purpose or use. The Customer is required to make all necessary and due enquiries to ensure that the Goods and/or Services are suitable for their needs.
15.1.2 The Customer agrees to indemnify Position Partners and its officers and employees and agents, in respect of all claims for loss, damage, or injury suffered by any person resulting from use by the Customer or by a third party of the Services or any part thereof or of materials produced or derived.
15.1.3 All service work and any repairs are to be carried out solely by Position Partners or an authorised representative and warranty provided will be void if work is carried out by other parties.
15.1.4 With respect to the warranties offered by Position Partners, this shall include (unless the warranty documents provided at the time of the Transaction state otherwise):
(i) Instrument batteries including internal and external standard batteries;
(ii) Screen protectors during annual service if required;
(iii) Standard cables.
15.1.5 With respect to the warranties offered by Position Partners, this shall exclude (unless the warranty documents provided at the time of the Transaction state otherwise):
(i) Tripods and bipods;
(iii) Prisms including 360 and mini prisms;
(iv) Hard cases and canvas bags;
(v) Non-standard external batteries or power systems including solar;
(vi) Field controller brackets and clamp.
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