Terms & Conditions
CLICK WRAP TRADING TERMS
By clicking on the “I accept the terms and conditions” button You are indicating Your acceptance of this Agreement and agree to be legally bound by its terms.
1.1 In this Agreement the following definitions apply:
Agreement means the agreement formed between You and Us for the Order of the Product and download of the Software and includes these Trading Terms.
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth), Schedule 2.
AUD means Australian dollars.
Claim includes any claim, action, demand or proceeding
(a) under, arising out of, or in any way in connection with this Agreement;
(b) arising out of, or in any way in connection with the Product or either party’s conduct before the date of the Order; or
(c) arising otherwise at law including in equity, by statute, tort (whether for negligence or otherwise), contract, for restitution or unjust enrichment.
Consumer has the meaning given to it in the Australian Consumer Law.
Delivered Duty Paid has the same meaning attributed to it under the Incoterms ® 2010 edition.
Documentation means any documentation made available to You by Us for use with the Product and Software, including any user’s guide or any documentation available online.
Force Majeure Event means any event beyond the reasonable control of the relevant party.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Liability means all liabilities, costs, damages, losses, expenses and outgoings of whatever description, including the costs and expenses of defending or settling any Claim.
Order means the order placed by You with Us for the supply of the Product and download of the Software.
Prescribed Terms means any terms, conditions and warranties which the law expressly provides may not in respect of this Agreement be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent.
Product means the “Moku” test and measurement device.
Software means the software owned by us and downloaded by You.
Support means the services set out in clause 7.1.
Us, We, Our means Liquid Instruments Pty. Limited ACN 008 448 959 and includes its directors, agents, subcontractors and employees.
You, Your means the person/entity purchasing the Product and downloading the Software and includes its directors, agents, subcontractors and employees.
1.2 Unless the context requires otherwise:
(a) a reference to a person includes a corporation, a trust or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
(d) where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(e) the term “includes” (or any similar term) means “includes without limitation”; and
(f) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2.1 You may place an Order with Us from time to time for the supply of the Product and a licence of the Software.
2.2 Once an Order is placed, it cannot be cancelled.
2.3 The fees for the Product and Software are specified in Our pricing schedule (available at www.liquidinstruments.com or by emailing [email protected]) applicable at the date of the relevant Order. We may update the pricing schedule from time to time. Pricing is on a Delivery Duty Paid basis.
2.4 You must give Us all relevant information to process Your Order (including credit card information, name, contact person, address for delivery of the Product, and any other information which may affect Our ability to provide the Product) at the time of the Order.
3.1 Payment for the Product and Software is due at the time of the Order. You authorise Us to charge your credit card to effect the payment. At our discretion, we may delay processing of the payment until the time the Product is shipped by Us to You. In the event that We incur a charge in connection with the payment, You must pay Us the amount of that charge as an additional payment.
3.2 You must pay all GST payable by Us in connection with the supply of the Product and Software and any other applicable taxes or charges. Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
3.3 We will not deliver the Product or permit You to download the Software until we have received all monies payable by You in connection with the supply of the Product and Software.
4 GRANT OF SOFTWARE LICENCE
4.1 We grant you a personal, non-exclusive, world-wide, non-transferable licence to use the Software and the Documentation for the purpose of using and operating the Product, subject to and in accordance with the terms and conditions set out in this Agreement.
4.2 You must not:
(a) use the Software for any purpose or in any manner other than as set out in clause 4.1;
(b) permit any third party to use the Software;
(c) reproduce, make error corrections to or otherwise modify or adapt the Software or the Documentation or create any derivative works based upon the Software or the Documentation;
(d) de-compile, disassemble or otherwise reverse engineer the Software or permit any third party to do so; or
(e) modify or remove any copyright or proprietary notices on the Software or the Documentation.
5.1 You acknowledge and agree that:
(a) We do not warrant that access and use of the Software will be uninterrupted, error-free, or completely secure;
(b) We do not warrant that the Software will be compatible, or operate in any combination with Your equipment and other software programs which may be selected for use by You;
(c) We do not guarantee the Software to be free from virus, spyware or malware (as those terms are generally understood in the IT industry); and
(d) You will use the Product and Software in accordance with the Documentation.
5.2 You agree that the Product and Software cannot be used for military, medical or nuclear power purposes.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
6.2 You acknowledge that We own all Intellectual Property Rights in the Product and the Software.
6.3 You must not directly or indirectly do anything that would or might invalidate or put in dispute Our title in the Software, the Product or any of Our registered or unregistered trade marks (Trade Marks).
6.4 You must comply with Our reasonable usage guidelines and directions with respect to the Software and the Trade Marks as notified to you from time to time.
6.5 You acknowledge that the Software and its components may contain software licensed from third parties. All rights in and to any such third party software are reserved by and remain with the applicable third parties. You agree that such third parties may enforce their rights under this Agreement against you directly in their own name.
7 SOFTWARE SUPPORT SERVICES
7.1 We will provide the following Support in relation to the Software:
(a) resolution of reported defects and errors in the Software in order that the Software will comply in all material respects to any Documentation relating to the Software; and
(b) provision (by download) of enhancements or new releases of the Software which We make generally available to Our customers.
7.2 Support will be available during normal business hours in Canberra, Australia. Support may be requested by email at the address advised from time to time by Us.
7.3 We will provide Support only to Your administrative or technical contacts listed on Your Order.
7.4 Support does not include:
(a) correction of errors or defects in the Software where the Software has been modified by you or a third party without our consent;
(b) correction of errors or defects in any of Your supplied interfaces to Your own or any third party’s computer systems or services; and
(c) correction of errors or defects in the Software caused by Your failure to install any previously-supplied patches, fixes or updates to the Software.
7.5 All Support will be provided remotely via email or download.
8 PRODUCT DELIVERY
8.1 We will use Our reasonable endeavours to meet the delivery time/s and delivery dates specified on an Order but will not be responsible for any loss or damages incurred by You or any other person or entity as a result of early or late delivery of the Product and Software.
8.2 Title to the ordered Products will transfer to You upon the later of payment in full for the Products and dispatch of the Ordered Products to you.
8.3 The Product is sold and delivered to You on the basis of Delivered Duty Paid. Risk in the Product will pass to You upon delivery.
9.1 A party may terminate this Agreement immediately by written notice to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of this Agreement by the other party and the other party fails to remedy that breach within 14 days of written notice to do so; or
(b) an insolvency event occurs.
9.2 If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) each party retains the Claims it has against the other;
(b) your right to use the Software and the Trade Marks immediately ceases and the licences granted under this Agreement terminate;
(c) you must immediately remove all of Our Software and Trade Marks from your electronic devices
10.1 To the full extent permitted by law, We exclude all liability in respect of your use of the Software and the Product, loss of data, interruption of business, wasted management time or any consequential or incidental damages, even if We had been advised by You or should have reasonably been aware of the possibility of such loss.
10.2 To the full extent permitted by law, except as expressly set out in this Agreement and except for any Prescribed Terms, all conditions, warranties, terms and obligations expressed or implied by law or otherwise relating to this Agreement or the performance of the obligations by Us under this Agreement, are excluded.
10.3 Subject to clause 10.6, Our total aggregate Liability for all Claims is limited to the total amount paid by You to Us for the Product and Software.
10.4 Either party’s Liability for any Claim relating to this Agreement will be reduced to the extent to which the other party contributed to the Liability arising from the Claim.
10.5 You warrant that You have satisfied Yourself as to the description and condition of the Product provided and its fitness for the purpose to which it was ordered.
10.6 Our liability for the breach of any Prescribed Term, is limited to (at Our election) to:
(a) in the case of a major failure (as defined in the Australian Consumer Law), the extent permitted by the Australian Consumer Law; or
(b) in any other case:
(i) in the case of goods, the replacement of the goods, the supply of equivalent goods, the repair of the goods or payment of the costs of repairing the goods or obtaining equivalent goods.
(ii) in the case of Services, the supply of the services again or payment of the cost of having the services supplied again.
11 WARRANTY & PRESCRIBED TERMS
11.1 We warrant that for a period of 12 months from supply of our Product and Software it will:
(a) comply with the relevant specifications or Documentation published by us; and
(b) meet the relevant minimum performance criteria published by us.
11.2 If You consider that Our Product and Software which you have purchased are not of an acceptable quality, have a latent defect, or are otherwise not compliant with a Prescribed Term, you can make a claim for breach of a Prescribed Term.
11.3 If You wish to make a claim for breach of a Prescribed Term or a breach of the defects warranty in clause 11.1 (together, a “Warranty Claim”), You must notify us by contacting Our nominated contact person as set out in clause 11.6 as soon as reasonably possible after the defect becomes evident setting out the nature of the defect.
11.4 We will not be liable for any breach of the defects warranty in clause 11.1 unless You have notified us within 12 months of the supply of the Product and download of the Software.
11.5 The benefits to a Consumer given by the express warranty in clause 11.1 are in addition to other rights and remedies of a Consumer under the Prescribed Terms.
11.6 If You wish to make a Warranty Claim you must contact:
Liquid Instruments Pty. Limited ACN 008 448 959
by email to: [email protected]
You must describe the fault in the Product or Software at the time of making the Warranty Claim.
11.7 If Your claim is valid, Our liability is limited in accordance with clause 10 and You will bear any expenses incurred by You that arise from making the Claim.
11.8 Our goods come with guarantees that cannot be excluded by the Australian Consumer Law. You are entitled to a replacement or refund for a major failure, and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
12 FORCE MAJEURE
We will not be liable for any failure to meet any obligations to the extent that such failure is caused by or arises from:
(a) strikes, lockouts or other industrial disputes, shortage of labour or materials, delay in manufacturing by Us, Our associates or suppliers, civil commotion, fire, flood, drought, loss or delay at sea or otherwise, civil breakdown or war, or;
(b) any other cause beyond the Our reasonable control whether arising from natural causes or human agency,
and in such event We may (at Our discretion) elect to cancel that Order or extend the time for performance and You will not be relieved of any obligation to accept or pay for goods by reason of any such delay in delivery.
13.1 The law of the Australian Capital Territory shall apply to this Agreement and You hereby submit to the jurisdiction of the Courts of that Territory.
13.2 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
13.3 Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
13.4 This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements.
13.5 This Agreement may be amended only by a document signed by all parties.
13.6 A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.