Access POS - Terms and Conditions of Sale

Definitions

1. In these conditions, “contract” means the contract arising out of acceptance of this order, “customer” means the person/s, the firm or company to whom or to which this order is addressed or any other person/s, firm or company with whom any item of goods or services described in this order are addressed, “Access POS” means Access POS Pty Ltd, “system” means a supply of software or hardware or services or a combination, “third party software” means software that is commonly installed on a computer along with an operating system eg. bundled anti-virus programs and including the operating system eg. Microsoft Windows that is not a product manufactured or directly sold by Access POS Pty Ltd ie. the software is not listed within the sales contract as having been sold or supplied by Access POS Pty Ltd or where Access POS Pty Ltd has no copyright and “third party hardware” means goods not contained in the sale or supply contract.

Acceptance of Agreement

2. This contract is deemed to have been executed / entered into by both parties in the City of Sydney, New South Wales, Australia and is governed by the laws of the State of New South Wales in the Commonwealth of Australia.

3. The contract is binding and cannot be cancelled without written acceptance by Access POS Pty Ltd.

4. The customer is aware of the full specification of the system.

5. It is the customer’s responsibility to ensure that the software and hardware (system) meets their entire specific needs.

6. It is not the responsibility of Access POS Pty Ltd to understand or act on any needs or requirements of the customer that have not been conveyed to Access POS Pty Ltd in writing, either prior too or after the contract has been entered into too.

7. Commencement by Access POS Pty Ltd at the request by the customer of the work specified in this contract shall be deemed to be acceptance or this contract subject to these conditions of sale herein.

8. The prices in this order are based on material and labour costs prevailing at the date of this order. Should there be any increase in those costs before acceptance of this order Access POS Pty Ltd may make corresponding increase in those prices.

9. The prices in this order are based on the measurements, descriptions and other facts furnished to Access POS Pty Ltd and should any of those measurements, descriptions or other facts be inaccurate, Access POS Pty Ltd may make such increase in those price as it deems necessary because of that inaccuracy.

Supply / Installation of Goods and Services (System)

10. Access POS Pty Ltd shall not be liable for the safe keeping of goods which it has taken onto a site for installation or onto the customer’s premises but which have not been installed and or paid for, and the customer shall be liable to insure such goods at their own expense.

11. Access POS Pty Ltd shall be under no liability to the customer should performance or continued performance by Access POS Pty Ltd of the contract be wholly or partly delayed or prevented by our inability to procure materials, due to an act of God, war, lock-out, fire or any cause beyond the control of AccessPOS Pty Ltd.

12. Additional hardware or software required to connect items contained within this contract / order to the customer’s own / existing hardware or software will be at the customers cost for labour time and parts.

13. If the contract contains items such as computers that have third party software installed and in particular Microsoft ® Windows ® operating systems, then the customer is deemed to have good knowledge of these product(s). Training provided by Access POS Pty Ltd does not include any third party software unless otherwise stated within this contract.

14. Access POS Pty Ltd does not warrant any third party software and accepts no liability for any failure of these products even if Access POS Pty Ltd supplied such products to the customer.

15. Access POS Pty Ltd accepts no liability for any conflict or failure to the supplied items, which has resulted from the installation of third party hardware or software, which has been performed by any other person or machine except an authorised representative of Access POS Pty Ltd.

16. Access POS Pty Ltd accepts no liability for the failure of any item (system) supplied within this contract, which is caused by computer viruses, from the time of delivery and or installation.

17. Time allocation, included in the price of this contract covers total time spent on or off site (site meaning the customers premises) by a representative of Access POS Pty Ltd for the purpose of training, questions, hardware and or software installation, data conversion, programming and otherwise configuring and supervising the overall use of the system.

18. If the word "day" is expressed as a period of time in terms of activities to be performed by Access POS Pty Ltd in overall relation to the completion of this contract, then it should be understood as a period of time no greater than seven hours and within the time period of 9am to 5pm, Monday to Friday.

19. The supply of any manuals, packaging or transport material is at the discretion of Access POS Pty Ltd.

20. A cancellation or delay of the agreed installation date or time of a system caused by the customer with less then 21 days notice may incur additional charges as determined at the sole discretion of Access POS Pty Ltd to be added to the contract total and amount payable under this agreement / contract. These additional charges may include the following, but not limited too: non cancellable accommodation, transport and freight costs, storage of hardware, interest on monies outstanding at the same rate of overdue payments in compensation for prepayment of system parts by Access POS Pty Ltd and chargeable labour time lost to Access POS Pty Ltd.

21. The quality of data to be converted impacts on the time spent on conversion work. This is the customer’s responsibility and Access POS Pty Ltd may charge additional fees for labour time above what is contained within this contract.

22. Access POS Pty Ltd accepts no liability for the integrity of data either after a conversion process or generally, which resides within the hardware or software of the customer.

23. Any dispute in relation to training, installation, programming, data converting, software and or hardware must be made in writing to Access POS Pty Ltd within 7 days of the mentioned supply.

24. Any time lost due to problems or issues caused or surrounding the use of the customers own software or hardware will cause Access POS Pty Ltd to charge additional fees to the customer.

25. It is the customer’s responsibility to lay and terminate any necessary cables unless otherwise stated.

26. Any software or hardware not supplied by Access POS Pty Ltd, which needs to be connected to the system, must meet written specifications as supplied by Access POS Pty Ltd and be configured accordingly.

27. Access POS Pty Ltd is not responsible for establishing or maintaining email, Internet or other communication connections unless otherwise stated in this contract.

28. Access POS Pty Ltd is not responsible for conflicts or failure or disruption to the computer network that was installed by Access POS Pty Ltd due to third parties and / or their products, email, internet and / or other communication connections / devices, cables and or their connections or any other software or hardware either not supplied or warranted by Access POS Pty Ltd.

Software License

29. All software manufactured by Access POS Pty Ltd including system design and data structures are protected by Australian and international copyright laws. The customer is not permitted to show the software, system design or data structures or provide access to it in any form to any other party without the written permission of a Director of Access POS Pty Ltd. A breach of this condition will be deemed to have caused Access POS Pty Ltd damage and loss.

30. Annual Software License & Support fees maybe advised at the time of this contract but are subject to change without any further notice being given. Complete terms & conditions of annual Software License & Support can be viewed at; Software License & Support

31. Any computer software manufactured and supplied by Access POS Pty Ltd will have software license conditions of use which are separate to the terms and conditions set out herein. These software license conditions of use apply in addition to the terms and conditions set out herein. Full software license terms and conditions can be viewed from within the Access POS Software. From the Main Menu: Utilities > System Options > My License > License Agreement.

32. The software license for the Access POS Software consists of the legal business name, phyical address of the business and the business ABN. The business address can not be a PO Box. It can only be the physical address of the business where the primary business takes place.

Payment of Goods and Services

33. Payment for the goods shall be made in full within the time stipulated. If a breach is made to the terms as specified or the customer defaults in payment, commit an act of bankruptcy or where the customer is a company should the customer be wound up either voluntarily or by order of the court or should there be a receiver or official manager of the customer appointed, Access POS Pty Ltd may at any time suspend or terminate the contract. Further title to all merchandise sold hereunder or any part thereof shall at all times remain with Access POS Pty Ltd until fully paid in cash.

34. Interest is accrued on any outstanding amount / balance payable to Access POS Pty Ltd from the day after the due date. The rate of interest will be 20% per annum calculated on a daily basis until full payment of cleared funds is made to Access POS Pty Ltd which includes balance contract monies plus accrued interest and recovery costs.

35. Payments terms are cash on delivery unless otherwise stated.

36. Access POS Pty Ltd reserves the right to charge an additional fee for accepting a credit card as payment as a percentage of the invoice total up to the rate allowed by the Reserve Bank of Australia.

37. Should full payment become over due then Access POS Pty Ltd reserves the right to remove or disable any hardware or software supplied including any hardware or software attached to the supplied hardware or software. The customer accepts that Access POS Pty Ltd is not liable for any loss or damage this may cause.

Warranty

38. The supply of new goods, with the exception of power transformers, will be covered by a twelve (12) month warranty beginning from the date in which this agreement / contract is entered into, unless otherwise stated.

39. All hardware is provided with a return to base (RTB) warranty unless otherwise stated and the customer is liable for any associated delivery / freight costs to the premises of Access POS Pty Ltd.

40. Access POS Pty Ltd does not provide any warranty to either third party software or third party hardware

41. The Customers attention is drawn to section 68A of the Trade Practice Act, 1974 (hereinafter called “the act”) which has the effect of enabling suppliers of goods or services (not being goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption) to limit their liability in certain circumstances for breach of certain of the conditions or warranties implied by the Act.

42. Subject to the qualifications contained in section 68A (2) of the Act, should Access POS Pty Ltd be liable for breach of a condition or warranty implied by division 2 of Part V of the Act (not being a condition or warranty implied by section 69 of the Act) Access POS Pty Ltd’s liability for such breach shall be limited to any one of the following as determined by Access POS Pty Ltd in it’s discretion:-

a) Repair of the goods; or

b) The supply of the goods and or services again; or

c) The payment of the cost of having the goods and or services supplied again.

43. Subject to any legislation to the contrary, and to clauses (40) and (41) herein, but not withstanding any other clause of this agreement:-

a) Representatives and agreements not expressly contained herein shall not be binding upon Access POS Pty Ltd as conditions, warranties or representations.

b) All conditions, warranties and representations on the part of Access POS Pty Ltd whether express or implied, statutory or otherwise, whether collateral or antecedent hereto or otherwise are hereby expressly negated and excluded.

c) This agreement / contract constitutes the whole of the agreement / contract and undertakings between the parties with respect to the subject matter hereof and all additions and modifications of this agreement / contract shall be in writing and shall be signed by both parties.

d) Access POS Pty Ltd shall be under no liability to the customer for any loss (including but not limited to loss of profits, economic loss and consequential loss) for damage to persons or property or for death or injury caused by any act or omission (including negligent acts or omissions) of Access POS Pty Ltd it’s servants or agents, whether arising pursuant to statute or regulation, in tort, contract (including fundamental breach or breach of a fundamental term) or otherwise.

e) Without limiting the generality of the preceding subparagraph, Access POS Pty Ltd shall not be liable pursuant to statute or regulation, in tort, contract (including fundamental breach or breach of a fundamental term) or otherwise for any damage or loss (including but not limited to loss of profits, economic loss and consequential loss) arising from the failure of the equipment of the design or operation thereof or any advice given by Access POS Pty Ltd, its servants and agents in relation thereto.

f) The customer hereby agrees to indemnify Access POS Pty Ltd against any claims made against Access POS Pty Ltd by any third party, in respect of any such loss, damage, death or injury set out in subparagraph (d) and (e) hereof.

Refund Policy

44. No refunds will be given unless mandated by law.

45. All deposits paid are non refundable.

46. Any parts or whole of the system which become defective, in which the manufacturer deems to have occurred within normal conditions of use and within the warranty period, then the provisions covering warranty herein will apply.

Miscellaneous

47. The failure of Access POS Pty Ltd to enforce any provision of this agreement / contract shall not be deemed a waiver of such provision nor the right to enforce such provision.