This Agreement is between Gratex and the Customer to whom Gratex has agreed to supply Products and/or Services. The following terms and conditions govern the trading relationship between Gratex and the Customer
In these Terms:
"ACL" means the Australian Consumer Law, as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
"Customer" or "you" means the person, business or company that is the purchaser of the Products and/or Services;
"Products" means any products, goods, services provided by Gratex, software licenses and Services such as cloud software subscriptions and infrastructure-as-a-service services provided by Vendor/s and supplied to Customer by Gratex and described in Gratex's invoice and/or Sales Contract, and/or Quotation and/or Agreement;
"Product Terms and Conditions" means any terms and conditions stipulated by Gratex or by a third-party supplier or a vendor which are specific to a certain Product, and may include a Software Licence Agreement or Software Development Agreement or Maintenance Agreement or Managed Services Agreement;
"Sales Contract" means any sales contract or agreement entered into by the Customer and Gratex in respect of the Products supplied to you in which these Terms are deemed to be incorporated;
" Gratex " or "us" means Gratex International Aust Pty Ltd (ABN 70 090 952 113). Gratex is a reseller of Products and Services and Cloud Service Provider;
“Cloud Service Provider” is a company that offers some component of cloud computing such as cloud software subscriptions, infrastructure-as-a-service, software-as-a-service, platform-as-a-service;
“Vendor/s mean Microsoft, Trend Micro, Veeam or any other licensor of the Products or provider of the Services;
“Distributor/s” mean Rhipe, Ingram Micro, Dicker Data, Westcon or any other distributor of Products and/or Services;
“End User License Agreement” means any licence which the Vendor of the Product or Service requires the Customer to enter into in order to use the Product or Service.
A reference in these Terms to: (a) the singular includes the plural and vice versa; (b) the word "including" means "including, but not limited to," and the word "includes" means "includes, without limitation,"; (c) A reference to a gender includes all genders; and (d) a reference to a person (including a party) includes an individual, company, other body corporate, partnership, firm, joint venture, or a trust.
If anything in this document is inconsistent with something specifically agreed with you, or in Product Terms and Conditions, then the particular arrangement agreed with you in writing applies instead of the inconsistent part of this document to the extent of the inconsistency only.
a) Prices are subject to variations. Gratex will provide Customer with no less than 14 days’ notice of any vendor driven variation and no less 7 days’ notice of any currency fluctuation driven variation. Where prices are subject to currency fluctuations, Gratex may once per quarter adjust the prices to the then current currency exchange rate. Gratex may adjust pricing at any time in the event that any applicable currency pairings fluctuate by more than 5% to the then current currency exchange rate.
b) All orders for Products placed by the Customer are subject to acceptance by Gratex, and no order will be deemed to have been accepted by Gratex unless Products are supplied or the order is confirmed in writing by an authorized representative of Gratex to the Customer.
c) Once an order is placed, it cannot be withdrawn without our consent. Placing an order means that you are responsible for payment in full for that order.
d) Gratex is not liable for pricing errors. If you place an order for a Product that was incorrectly priced, we will cancel your order and credit you for any charges. In the event that we inadvertently ship an order based on a pricing error, we will issue a revised invoice to you for the correct price and contact you to obtain your authorization for the additional charge, or assist you with return of the product. If the pricing error results in an overcharge to you, Gratex will credit your account for the amount overcharged.
e) Orders may be placed by email and may be confirmed by email, and Gratex's determination of whether an order has been placed or confirmed by email shall be conclusive.
f) Gratex shall be under no obligation to accept the return of any Product supplied, but if it does so in its absolute discretion, the Customer shall pay a restocking fee of 15% of the price of the Product.
a) The price of the Products will be Gratex's quoted price, subject to change by Gratex at any time prior to acceptance of the order.
b) Gratex also reserves the right to vary a quoted price, even after acceptance of an order, should the exchange rate between Australian and US dollars vary by plus or minus A$0.02, and the Customer agrees to pay the varied price.
c) Hosted Products and Services are billed in whole months.
d) Prices are exclusive of GST unless otherwise indicated, and the Customer must also pay the GST to Gratex when paying the balance of the price.
e) Payment is required within 14 days of invoice to the Customer, unless agreed otherwise in writing by an authorised officer of Gratex. If the Customer fails to make payment in accordance with this clause after demand for payment by Gratex, all amounts owing by the Customer to Gratex on any account will immediately become due and payable. Gratex shall be entitled to cancel or suspend the supply of any further products or services to Customer and Customer shall indemnify and hold Gratex harmless from any claims of whatever nature including but not limited to any claims for loss, compensation or damage that may be made by Customer arising from or relating to such cancellation or suspension of the supply of products and services by Gratex. Gratex shall be entitled to immediately commence legal proceedings for the recovery of the unpaid amount of the invoice.
f) The Customer will be liable to pay interest on any overdue amount at the annual rate of 2% above the prevailing base lending rate quoted by the Westpac Banking Corporation. Interest will accrue daily from the date payment became overdue until Gratex has received payment of the overdue amount, together with any interest accrued.
g) Unless stated otherwise in these Terms (or in writing by Gratex 's authorised representative), all prices quoted for Products are exclusive of installation, configuration, and all taxes, handling and delivery. Installation, configuration and freight charges and taxes must be paid by the Customer in addition to the price for the Products.
h) Payments via any agreed funds transfer mechanism are only received when Gratex's financial service provider has provided written confirmation of receipt to Gratex.
i) If payment is made by credit card a payment processing fee and the banking credit surcharge may be charged to you.
a) The Customer acknowledges that Products and Services supplied by Gratex are also supplied subject to the terms and conditions of any Terms and Conditions of the Vendor of those products and services and the Customer agrees that it shall at all times comply with the terms and conditions of the Vendor.
b) The Customer further agrees that it shall only use the Products and Services ordered by the Customer from Gratex in accordance with and subject to the terms and conditions of the licence which is granted to use that product or receive the service.
c) The Customer is required to enter and comply with the terms of any End User Licence Agreement that the Vendor/s require the end user of the Product or Service to enter and comply with.
d) The Customer hereby acknowledges that the Products and Services supplied by Gratex are in the nature of licences to use the Products and subscriptions to Services and are supplied subject to any and all terms and conditions stipulated by the Vendor/s of the products for use of the Products and Services. The Customer acknowledges that all title and intellectual property in the Products and Services are owned by the Vendor/s of the Products and Services or their licensors. The Company acknowledges that the supply of the Products and Services by Gratex to the Customer does not transfer any ownership of the Products or Services or any intellectual property to the Customer. Licence terms and conditions may be packaged with the software, may be separately provided to the Customer for execution, may require on-screen acceptance by the Customer, or may be available for inspection by the Customer at the Vendor/s website.
e) The Customer agrees that at all times it shall indemnify and hold Gratex harmless from all claims of whatever nature and howsoever arising made by any Vendor/s of the Products and/or Services arising from any breach of these terms and conditions or any agreement or licence entered between the Customer and the Vendor/s or any improper, unlawful or unauthorised use or dealing by the Customer with the Products and/or Services.
f) Unless agreed elsewhere otherwise and subject to clause 15)c) and to the maximum extent permitted by Law, the Customer hereby acknowledges that Gratex has not made any warranties or representations of any nature to the Customer in relation to the nature or quality of the Products or Services or as to their fitness or suitability for use for any purpose whatsoever.
Delivery times advised to the Customer are estimates only and Gratex will not be liable for any loss, damage or delay suffered or incurred by the Customer arising from late or nondelivery of the Products.
Gratex may make part deliveries of any order, and each part delivery will constitute a separate supply of the Products upon these Terms.
a) Gratex will provide the Products and Services, that are in the nature of subscriptions such as MS Azure, Office365, Dynamics 365 for a minimum term of 30 days.
b) After the minimum term, Gratex will provide the Products and Services to the Customer for rolling terms of 1 month. The Agreement automatically renews for each rolling term unless terminated in accordance with this Agreement. Cancellation will take effect at the end of the term in which the party gave notice of cancellation. 30 days written notice is required to terminate this agreement.
c) The Customer acknowledges that, unless otherwise stated elsewhere, Gratex may at any time and in its absolute discretion give notice to the Distributor or Vendor/s that it declines to continue to act as the Cloud Solution Provider of Products and/or Services for the Customer. Gratex will provide the Customer with no less than 14 days’ notice of its intention to discontinue to act as a Cloud Services Provider for the Customer and will provide assistance to the Customer to move to another Cloud Service Provider. The Customer further acknowledges that Gratex is not an agent, servant, partner or joint venturer with the Distributor/s or Vendor/s of the products and services.
The Customer must:
a) in the case of all Products ordered, inspect such Products upon delivery to the Customer's premises and confirm they are the correct Products ordered; and,
b) in the case of Products which are software developed by Gratex for the Customer, follow the acceptance procedures in the relevant Software Development Agreement.
a) Products supplied by Gratex to the Customer will be at the Customer's risk immediately upon:
i) delivery of the Products to the Customer, Customers agent or into the Customer's custody or control; or
ii) collection of the Products by nominated carrier or agent
b) Risk in the Products will remain with the Customer at all times unless Gratex retakes possession of the Products in accordance with clause 9(d)(ii).
c) Title in the Products supplied by Gratex to Customer will not pass to the Customer and will remain the absolute property of Gratex until such time as Gratex has been paid by the Customer all monies due and owing to it by the Customer in relation to any account. Title to those Products which are software remains with Gratex and/or the applicable third party licensor(s) at all times.
d) If the Customer has breached these Terms and conditions or Product Terms and Conditions, or the terms of any relevant Sales Contract, the Customer authorises Gratex, at any time, to enter onto any premises upon which Gratex 's Products are stored to enable Gratex to:
i) inspect the Products; and/or
ii) reclaim the Products
e) The Customer acknowledges that in the case of software Products, any refusal or failure to pay may result in cancellation of the licence to use the software Product.
f) The Customer is responsible for any equipment at your premises (including any that belongs to us). You must pay us for any loss or damage to our equipment at your premises.
g) You must provide safe access to your premises, whether owned by you or leased, for Gratex to perform its work for you. You must also at the request of Gratex maintain and repair any equipment belonging to you or to third parties and located at your premises.
If the performance of Gratex's obligations under these Terms or any relevant Sales Contract is prevented, restricted or affected by force majeure including strike, disturbance, riots, war, lock out, raw material shortage, breakdown of plant, transport or equipment, any third party provider outages, cut of cable, or any other cause beyond the reasonable control of us such as Denial of Service (DoS) or any other attack, we will give notice of such cause to you and after 60 days from the receipt by you of such notice, either party may terminate the relevant Sales Contract without penalty.
a) Without prejudice to any of Gratex 's other rights under these Terms, if the Customer fails to make any payment due to Gratex under these Terms, Gratex may, in its sole discretion, and without further liability to the Customer:
i) refuse to make further supplies to the Customer under the relevant Sales Contract; and/or
ii) terminate the Sales Contract without notice.
b) The Customer agrees that these Terms shall give rise to an interest in land thereby enabling Gratex to lodge a caveat against the title to any land owned partly or wholly by the Customer, in order to protect and secure the interests of Gratex under these Terms and under any Sales Contract.
c) In the event that Gratex lodges a caveat against any land owned partly or wholly by the Customer, the Customer hereby irrevocably agrees to endorse its consent upon any relevant forms or documents to enable the lodgement and timely registration of any such caveat by Gratex.
d) In the event of termination of the Sales Contract in accordance with clause 10 (a) you must cease using the Products and immediately pay all outstanding amounts owing to Gratex. Gratex may exercise against you any rights whatsoever available to it in law or equity, including suing for damages for breach of contract, or under the indemnity in clause 13, or under any other clause in these terms and conditions.
a) Gratex make reasonable commercial efforts to provide the Product as described in the Sales Contract.
b) The Product is provided on an as is basis and your use of the Product is at your own risk. We do not make, and hereby disclaim any and all other express and/or implied warranties, including but not limited to, fitness for a particular purpose, non-infringement and title.
c) Gratex do not warrant that the Product will be Uninterrupted, Error-free or completely secure.
a) Gratex will notify the Customer of any applicable manufacturers' warranty in relation to the Products. To the extent permitted by law, Gratex's entire responsibility with respect to warranties for the Products is to pass on to the Customer the benefit of any such warranties. Software Products are not warranted under these Terms. Software Products are warranted only in accordance with the relevant licence agreements that govern their use.
b) To the extent permitted by law, the manufacturers' warranties referred to in clause 13(a) are in substitution for all other terms, conditions and warranties, whether implied by statute or otherwise (including implied warranties with respect to merchantability and fitness for purpose) and all such terms, conditions and warranties are expressly excluded.
c) Certain legislation may imply warranties or conditions or impose obligations upon Gratex which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. These Terms must be read subject to those statutory provisions. If those statutory provisions apply, to the extent to which Gratex is able to do so, its liability will be limited, at its option, to:
i) in the case of products: the replacement of the products or resupply of equivalent products; repair of the products; payment of the cost of replacing the products or acquiring equivalent products; or the payment of the cost of having the products repaired; and
ii) in the case of services: the supply of the services again; or the payment of the cost of having the services supplied again
You will indemnify us (including related entities and representatives) against all losses, actions, claims, costs, expenses and damages (including legal costs on a solicitor and client basis) incurred by or awarded against us arising out or in respect of:
i) use of Products by you;
ii) a negligent act or omission or wilful misuse of Products by you;
iii) use of Products, Services or other equipment by you otherwise than in accordance with the Sales Contract or any practices or procedures;
iv) any unauthorised use of Products or Services by you or your respective customers, employees, officers or agents;
v) any fraudulent or negligent act or omission by you in respect of the Sales Contract;
vi) any content or data transmitted using Products or Services by you or your respective customers, employees, officers or agents;
vii) any breach of the Sales Contract and any written Agreement with us.
a) Gratex's total aggregate liability under this Agreement shall be limited to the maximum extent permitted by applicable Law, to direct damages up to the amount the Customer has paid Gratex for Products and/or Services in the immediately preceding three (3) months.
b) If the Customer entering these Terms of Trade is incorporated in Australia, the Customer and Gratex acknowledges that certain warranties cannot be excluded under the ACL.
c) Subject to clause 15)b) and to the maximum extent permitted by applicable Law, Gratex and related entities and representatives shall not be liable to the Customer for any indirect damages (including without limitation, consequential, special, punitive, or incidental damages, damages for loss of profits or revenue, loss of privacy, business interruption, or loss data or other of business information), arising out of the supply of Products and/or Services.
d) Subject to clause 15)b) and to the maximum extent permitted by applicable Law, including the ACL (where applicable), the limitations on and exclusion of liability for damages in this Agreement shall apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict or product liability (and statute to the maximum extent permitted by Law), breach of express or implied warranty.
a) The Customer acknowledges that:
i) all trademarks, copyright and other intellectual property rights ("Intellectual Property") embodied in or in connection with the Products and any related documentation, parts or software are the sole property of Gratex or its suppliers and partners; and
ii) all Intellectual Property of Gratex or its suppliers and partners may only be used by the Customer with the express written consent of Gratex or its suppliers and partners, during the continuance of any relevant Sales Contract, and such consent extends only to use essential for the purposes stated in it. Any licensing of Intellectual Property rights in any software Products supplied to the Customer will immediately cease upon expiry or termination of the relevant licence agreement that governs their use.
b) The Customer must not, during or after the expiry or termination of any relevant Sales Contract, without the prior written consent of Gratex or its suppliers, register or use any trademarks, trade name, domain name, trading style or commercial designation or design used by Gratex or its suppliers in connection with the Products.
c) The Customer will indemnify Gratex against all liabilities, damages, costs and expenses which Gratex may suffer or incur as a result of work done in accordance with the Customer's specifications or as a result of the combination or use of the Products with other equipment, parts or software not supplied by Gratex, and which results in the infringement of any Intellectual Property of any person.
a) We may amend these Terms at any time, by giving the Customer notice by mail or e-mail.
b) Neither Party shall, during the term of the Sales Contract or any extension of it, or for a period of twelve (12) months after the termination of the Sales Contract, solicit or attempt to solicit any employee of the other party to leave his or her employment with that other Party unless agreed in writing.
c) These Terms are governed by the laws of the State of New South Wales and the courts of the state of New South Wales shall have exclusive jurisdiction to hear any disputes arising from or relating to the Sales Contract.
d) You may ask any time for a hard copy of these Terms and Conditions by calling Gratex on 1800 111 110 or by visiting our Web site www.gratex.com.au.