Detailed Terms & Conditions (as at 1 January 2017):
SAAVI Mobile Ordering Pty Ltd t/a SAAVI – Terms & Conditions of Trade
1.1 “SAAVI” shall mean SAAVI Mobile Ordering Pty Ltd t/a SAAVI its successors and assigns or any person acting on behalf of and with the authority of SAAVI Mobile Ordering Pty Ltd t/a SAAVI.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by SAAVI to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by SAAVI to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by SAAVI to the Customer.
1.5 “Services” shall mean all Services supplied by SAAVI to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods or Services as agreed between SAAVI and the Customer in accordance with clause 4 of this contract.
1.7 “Delivery” shall mean the supply of any working software build or software release provided to Customer via email or any other digital means, where the Customer has either accepted delivery or becomes bound by the deemed acceptance clauses 3.6 and 5.5.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by SAAVI from the Customer for the supply of Goods or Services and/or the Customer’s acceptance of Goods supplied by SAAVI shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of SAAVI.
3.4 The Customer shall give SAAVI not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by SAAVI as a result of the Customer’s failure to comply with this clause.
3.5 Goods and Services are supplied by SAAVI only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3.6 The Customer agrees to deemed acceptance of any such delivery, whereby after any 10 working days from any delivery, if client has not tested nor advised SAAVI of non-acceptance of the delivery, then the delivery will be deemed to have been accepted by the Customer.
4. Price and Payment
4.1 At SAAVI’s sole discretion the Price shall be either: as indicated on invoices provided by SAAVI to the Customer in respect of Goods or Services supplied; or SAAVI’s current price at the date of delivery of the Goods or Services accordingly to SAAVI’s current Price list; or SAAVI’s quoted Price (subject to clause 4.2) which shall be binding upon SAAVI provided that the Customer shall accept SAAVI’s quotation in writing within thirty (30) days.
4.2 SAAVI reserves the right to change the Price in the event of a variation to SAAVI’s quotation.
4.3 At SAAVI’s sole discretion a deposit may be required.
4.4 At SAAVI’s sole discretion: payment shall be due before delivery of the Goods or Services; or
payment for approved Customers shall be made by instalments in accordance with SAAVI’s payment schedule; or payment for approved Customer’s shall be due thirty (30) days following the date of the invoice.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be cash on delivery following the date of the invoice.
4.6 Payment will be made by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and SAAVI.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 At SAAVI’s sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods or Services is received by the Customer and or we are approved to publish the app in the appropriate online store; or
5.2 SAAVI may deliver the Goods or Service by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.3 The failure of SAAVI not to deliver within the timeframes where the delays are solely caused by issues outside SAAVI’s control shall not entitle either party to treat this contract as repudiated.
5.4 SAAVI shall not be liable for any loss or damage whatever due to failure by SAAVI to deliver the Goods or Service (or any of them) promptly or at all, where due to circumstances beyond the control of SAAVI.
5.5. The Customer must within ten (10) working days of work being done, or delivery of customisations:
(a) undertake appropriate testing;
(b) provide evidence of Customer acceptance or non acceptance; and
(c) agree to deemed acceptance after such delivery if non acceptance has not been indicated to SAAVI in writing within that period.
6.1 If SAAVI retains ownership of the Goods or service nonetheless, all risk for the Goods or Service passes to the Customer on delivery.
6.2 Whilst every care is taken by SAAVI to carry out the instructions of the Customer, it is the Customers responsibility to undertake a final testing of the Goods or Services prior to providing approval to publish the App. SAAVI shall be under no liability whatever for any errors not corrected by the Customer in the final testing. Should the Customers require additional alterations, this shall be invoiced as an extra.
7.1 SAAVI and Customer agree that ownership of the Goods or Service shall not pass until: the Customer has paid SAAVI all amounts owing for the particular Goods or Service; and the Customer has met all other obligations due by the Customer to SAAVI in respect of all contracts between SAAVI and the Customer.
7.2 Receipt by SAAVI of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then SAAVI’s ownership or rights in respect of the Goods or Service shall continue.
7.3 It is further agreed that: where practicable the Goods or Services shall be kept separate and identifiable until SAAVI shall have received payment and all other obligations of the Customer are met; and until such time as ownership of the Goods or Services shall pass from SAAVI to the Customer SAAVI may give notice in writing to the Customer to return the Goods or Services or any of them to SAAVI. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods or Service shall cease; and the Customer shall not deal with the money of SAAVI in any way which may be adverse to SAAVI; and the Customer shall not charge the Goods or Services in any way nor grant nor otherwise give any interest in the Goods or Services while they remain the property of SAAVI; and SAAVI can issue proceedings to recover the Price of the Goods or Services sold notwithstanding that ownership of the Goods may not have passed to the Customer; and until such time that ownership in the Goods or Services passes to the Customer, if the Goods or Services are converted into other products, the parties agree that SAAVI will be the owner of the end products.
8.1 The Customer shall inspect the Goods or Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify SAAVI of any alleged defect or problem. The Customer shall afford SAAVI an opportunity to inspect the Goods or Services within a reasonable time following delivery if the Customer believes the Goods or Services are defective in any way. If the Customer shall fail to comply with these provisions the Goods or Services shall be presumed to be free from any defect or damage. For defective Goods, which SAAVI has agreed in writing that the Customer is entitled to reject, SAAVI’s liability is limited to either (at SAAVI’s discretion) replacing the Goods or Services or repairing the Goods or Services except where the Customer has acquired Goods or Services as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2 Goods will not be accepted for return or refund other than in accordance with 8.1 above.
9.1 To the extent permitted by statute, no warranty is given by SAAVI as to the quality or suitability of the Goods or Services for any purpose and any implied warranty, is expressly excluded. SAAVI shall not be responsible for any loss or damage to the Goods or Services, or caused by the Goods or Services, or any part thereof however arising.
10. Intellectual Property
10.1 Where SAAVI has designed, drawn, developed or written source code in the Goods or Services for the Customer, then the copyright in those designs, drawings and source code shall remain vested in SAAVI, and shall only be used by the Customer at SAAVI’s discretion.
10.2 The Customer warrants that all designs or instructions to SAAVI will not cause SAAVI to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SAAVI against any action taken by a third party against SAAVI in respect of any such infringement.
11. Default & Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
11.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify SAAVI from and against all costs and disbursements incurred by SAAVI in pursuing the debt including legal costs on a solicitor and own client basis and SAAVI’s collection agency costs.
11.3 Without prejudice to any other remedies SAAVI may have, if at any time the Customer is in breach of any obligation (including those relating to payment), SAAVI may suspend or terminate the supply of Goods or Services to the Customer and any of its other obligations under the terms and conditions. SAAVI will not be liable to the Customer for any loss or damage the Customer suffers because SAAVI has exercised its rights under this clause.
11.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.5 Without prejudice to SAAVI’s other remedies at law SAAVI shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to SAAVI shall, whether or not due for payment, become immediately payable in the event that: any money payable to SAAVI becomes overdue, or in SAAVI’s opinion the Customer will be unable to meet its payments as they fall due; or the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
12. Security and Charge
12.1 Despite anything to the contrary contained herein or any other rights which SAAVI may have howsoever: where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to SAAVI or SAAVI’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that SAAVI (or SAAVI’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. Should SAAVI elect to proceed in any manner in accordance with this clause and/or its subclauses, the Customer and/or Guarantor shall indemnify SAAVI from and against all SAAVI’s costs and disbursements including legal costs on a solicitor and own client basis. The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint SAAVI or SAAVI’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13.1 SAAVI may cancel any contract to which these terms and conditions apply or cancel delivery of Goods or Services at any time before the Goods or Services are delivered by giving written notice to the Customer. On giving such notice SAAVI shall repay to the Customer any sums paid in respect of the Price, excluding set-up costs. SAAVI shall not be liable for any loss or damage whatever arising from such cancellation.
13.2 In the event that the Customer cancels delivery of Goods or Services the Customer shall be liable for any loss incurred by SAAVI including, but not limited to, any loss of profits up to the time of cancellation.
14. Privacy Act 1988
14.1 The Customer and/or the Guarantor/s agree for SAAVI to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by SAAVI.
14.2 The Customer and/or the Guarantor/s agree that SAAVI may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
to assess an application by Customer; and/or
to notify other credit providers of a default by the Customer; and/or
to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
to assess the credit worthiness of Customer and/or Guarantor/s.
14.3 The Customer consents to SAAVI being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Customer agrees that personal credit information provided may be used and retained by SAAVI for the following purposes and for other purposes as shall be agreed between the Customer and SAAVI or required by law from time to time: provision of Goods or Services; and/or marketing of Goods or Services by SAAVI, its agents or distributors in relation to the Goods or Services; and/or analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods or Services; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
14.5 SAAVI may give information about the Customer to a credit reporting agency for the following purposes: to obtain a consumer credit report about the Customer; and/or
allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
15.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.
15.3 SAAVI shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by SAAVI of these terms and conditions.
15.4 In the event of any breach of this contract by SAAVI the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods or Services.
15.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by SAAVI.
15.6 SAAVI may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
15.7 The Customer agrees that SAAVI may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which SAAVI notifies the Customer of such change.
15.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
15.9 The failure by SAAVI to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SAAVI’s right to subsequently enforce that provision.