TERMS AND CONDITIONS OF QUOTATION AND SALE

1) INTERPRETATION

a) These “Terms and Conditions” from here on referred to as “Terms” and any document(s) referred to in them constitute the entire agreement about Relative Networks’ (RN) supply of the Products and Services to Customers and supersede all prior understandings, arrangements and agreements.

b) Any special conditions specified on a Quotation or Tax Invoice shall, to the extent they are inconsistent with these terms and conditions, take precedence over these terms and conditions.

c) The expression or reference “Person” (including a party) includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or unincorporated and a statutory or other authority and words importing the singular shall include the plural and vice versa.

d) A reference to a gender includes all genders.

e) The word “including” means “including, but not limited to”, and the word “includes” means “includes, without limitation”.

f) “Insolvency Event” shall occur when:

i) The Customer is late or fails to make any of the payments to RN Pty Ltd in accordance with RN Pty Ltd payment terms.

ii) An application, order or resolution is made or proposed for the winding up, dissolution, official management or voluntary administration of the Customer;

iii) The Customer enters into an arrangement, compromise or composition or assignment for the benefit of its creditors or any class of them;

iv) The Customer ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of its assets other than in the ordinary course of business;

v) The Customer is deemed unable to pay its debts as and when they fall due, or stops or suspends payments of its debts;

vi) A receiver, a receiver and manager, administrator, liquidator, or other officer is appointed to the Customer or any part of its property, or a third party attempts to levy execution against the Customer’s property or the Goods or the Customer (being a natural person) commits an act of bankruptcy.

2) DEFINITIONS

In these terms and conditions, unless the context otherwise requires:

a) “Customer” means the person, business or company that is the purchaser of the Products or Services;

b) “Quotation” means the form of quotation submitted by RN in which these terms and conditions of sale are or are deemed to be incorporated;

c) “Products and or Services” means any products (including software) and or services (where applicable) supplied to the Customer by RN or its Suppliers and described in RN’s invoice or quotation;

d) “Sales Contract” means any sales contract or distribution agreement entered into by the Customer and RN in respect of the Products and Services suppled to the Customer in which these Terms are deemed to be incorporated;

e) “Tax Invoice” has the meaning given to that term by the GST Act 1999 (as amended) and is issued by RN to the Customer in which these terms and conditions are or are deemed to be incorporated.

f) “Seller” means Relative Networks Pty Ltd ABN 45 112 487 966 unless the sale is expressed to be made by RN as agent for a Person/Company named in the Tax Invoice or Quotation in which case the Customer acknowledges that RN acts only as the agent of the Person/Company so named.

g) “GST” means Goods and Services Tax as defined by the GST Act 1999 (as amended).

3) GOVERNING TERMS AND CONDITIONS

These are the only terms and conditions which are binding upon Relative Networks Pty Ltd with the exception of those otherwise agreed in writing by Relative Networks or which are imposed by statute and which can not be excluded.

4) TERMS OF PAYMENT

a) Payment by the Customer for products is required prior to delivery to the Customer unless agreed otherwise in writing by an authorised officer of RN.

b) Payment by the Customer for services is required within 14 days from the date of invoice. Queries to charges need to be received by RN within 7 days of invoice date, in writing. Queries do not negate the due date of the invoice and payment is still required for the full amount. RN will investigate queries and will determine any validity, which if found to be valid will provide credit. Queries will not be accepted after due date.

c) Payment by the Customer for services provided by third parties and where RN acts as an agent are due in advance as detailed on the invoice.

d) If the Customer fails to make payment in accordance with this clause after demand for payment by RN, all amounts owing by the Customer to Relative Networks Ltd on any account shall immediately become due and payable and RN may, without prejudice to any other remedy, suspend supply or delivery of any Goods to the Customer until such payment is made and RN shall be entitled to increase the contract price to cover any extra expense, incurred as a result of the Customer’s default.

e) 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 RN has received payment of the overdue amount, together with any interest accrued. Where the Customer delays in making payment and legal action is undertaken the Customer will also be liable for such legal or other costs incurred by RN in attempting to recover the outstanding amounts owed by the Customer.

f) Unless stated otherwise in writing by RN’s authorised representative, all prices quoted for Products and Services are exclusive of all taxes, handling, delivery, agents’ charges and any other charge, duty or impost.

g) The Customer must pay RN, on demand, any tax (other than income tax) payable under these Terms, including any goods and services or value-added tax, customs duty, sales tax, excise duty, stamp duty, other duty, governmental charge, fee, levy or impost, together with any fine, penalty or interest payable because of a default by the Customer.

h) The Customer must pay to RN any amount the Customer must pay under clause(s) 4) a), b) c) d) e) in full, despite any right of set-off that the Customer may have.

i) The Customer shall pay the full amount due to RN under this clause and shall not deduct from that amount any tax in relation to purchase of products or services. The Customer shall reimburse RN for any taxes RN pays on its behalf.

5) GOODS & SERVICES TAX

a) All prices expressed or described by RN verbally or in writing are GST exclusive prices.
b) RN will provide to the Customer a Tax Invoice as specified in the GST Act.

6) INSPECTION AND ACCEPTANCE

The Customer must

a) in the case of all Products ordered (other than software Products), inspect such Products upon delivery to the Customers’ premises; or

b) in the case of software Products, test or inspect such software Products upon those Products being authorised by RN for downloading by a Customer, and must, within 7 days of delivery or downloading (as the case may be), give written notice to RN of any matter or thing by which the Customer alleges that the Products do not accord with the Customers’ order. Failing such notice and to the extent permitted by law, the Products will be deemed to have been accepted by the Customer.

7) RETURNS

a) Customer must notify RN in writing of any Products it wishes to return within 7 days from the date of the invoice relating to those Products.

b) Returns will be subject to RN’s “Supplier” returns policy as advised to Customer and amended by RN from time to time, the current version of which is set out on Relative Networks Pty Ltd (“Returns Policy”).

c) Each claim for the return of Products by the Customer will be dealt with in accordance with the Returns Policy. Any substitute Products to be shipped to Customer in accordance with the Returns Policy will be sent by RN to the Customer by ordinary freight pre-paid.

d) RN will not be liable for any damage or defects in the Products that have been caused by the improper storage, warehousing or transport, or by any neglect, abuse or improper use, installation, maintenance or

e) The provisions of this clause 9 do not extend to any Products which have been added to, varied, or otherwise modified by, any person other than RN.

8) QUOTATIONS

a) Unless previously withdrawn, a quotation is valid for thirty (30) days or such other period as stated therein. A quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise there from until the Customer’s order has been accepted by RN in writing.

b) RN shall not be bound by any conditions attaching to the Customer’s order or acceptance of a Quotation and, unless such conditions are expressly accepted by RN in writing, the Customer hereby acknowledges that such conditions are expressly negatived.

c) Prices specified in a Quotation are subject to alteration without notice. Unless otherwise stated in writing by RN, prices quoted shall be exclusive of handling, delivery, Agents charges and any charge duty or impost including sales tax and GST.

d) Every Quotation is subject to and conditional upon obtaining any necessary import, export or other licence.

9) TITLE AND RISK

a) Products supplied by RN to the Customer will be at the Customers’ risk immediately upon:

i) Delivery of the Products to the Customer, Customers’ Agent or into the Customers’ custody or control; or

ii) Collection of the Products by the Customers’ nominated carrier or agent.

b) Customer must:

i) Effect and maintain with a reputable insurance company insurance for the Products, at its cost, against all risks as it thinks appropriate:

ii) Note the interest of RN on the insurance policy; and

iii) Produce a certificate of currency of the insurance effected by the Customer under this clause 9 (b) to RN, upon request.

c) Risk of the Products will remain with the Customer at all times unless RN retakes possession of the Products in accordance with clause 9 (f)(ii).

d) Title in the Products supplied by RN to the Customer will not pass to the Customer and will remain the absolute property of RN until such time as RN 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 RN and/or the applicable third party licensor(s) at all times.

e) Until Products have been paid for:

i) The Customer must properly segregate and store the Products in such manner as to clearly indicate that they are the property of RN; and

ii) The Customer may sell the Products and shall keep records of the Products in the ordinary course of its business as fiduciary agent for RN and the Customer agrees to deposit all proceeds of any such sale (including any proceeds received from any insurance claims) in a separate bank account and agrees not to mix the proceeds with any other monies and hold the monies on trust for RN and shall immediately account for such proceeds to RN.

f) If the Customer has breached these Terms or the terms of any relevant Sales Contract, the Customer authorises RN, at any time, to enter onto any premises upon which RN Products are stored to enable RN to:

i) Inspect the Products; and/or

ii) Reclaim the Products.

g) If the Customer sells, disposes of or otherwise deals with Products or any part thereof before full payment has been received by RN, the Customer must advise RN in writing, at such times as RN may request, specifying full details of the Products sold, disposed of, utilised or otherwise dealt with.

h) 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.

i) The Customer agrees that the provisions of this clause 9 apply despite any arrangement under which RN grants credit to the Customer.

10) ADVICE

Any advice, recommendations, information, assistance or service provided by RN in relation to Goods supplied or manufactured by it in respect of their use or application is given in good faith and shall be accepted without liability on the part of RN and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods.

11) ORDERS

a) All orders for Products placed by Customer:

i) must be made in accordance with RN’s order policy as amended by RN from time to time, the current version of which is set out on Relative Networks Pty Ltd (“Order Policy”); and

ii) are subject to acceptance by RN, and no order will be deemed to have been accepted by RN unless Products are supplied or a back-order or delivery delay is confirmed in writing by an authorised representative of RN to the Customer.

b) RN may reject any order placed by the Customer if there is an insufficient supply of Products which prevents RN from being able to fulfill such order.

c) RN will not be bound by any terms attaching to the Customer’s order and, unless those terms are expressly agreed to in writing by an authorised representative of RN, the Customer agrees that those terms are hereby excluded.

12) INSTALLATION

RN Quotation or Tax Invoice is made on a supply only basis. Installation and commissioning (if any) is at the expense of the Customer unless otherwise specified in writing by RN.

13) DELIVERY AND PART DELIVERY

a) Delivery times advised to the Customer are estimates only and RN will not be liable for any loss, damage or delay suffered or incurred by the Customer or its customers arising from late or non-delivery of the Products.

b) RN may make part deliveries of any order, and each part delivery will constitute a separate supply of the Products upon these Terms. A part delivery of an order shall not invalidate the balance of an order.

14) MANUFACTUERS’ CHANGES

Where RN is acting for a manufacturer or supplier, RN shall not be liable for any alteration or variation in the goods made by the manufacturer or the supplier.

15) CURRENCY

Where goods are imported into Australia, any adverse variation in the price arising from fluctuation in exchange rates between the date of the Customer’s order and the date of payment by RN will be to the Customer’s account.

16) CONTINGENCIES

Any charge, duty, impost, sales tax or other expenditure which is not applicable at the date of Quotation or Tax Invoice but which is subsequently levied upon RN in relation to the Quotation or Tax Invoice as a result of the introduction of any legislation, regulation or governmental policy, shall be to the Customer’s account.

17) CHARGES BEYOND POINT OF DELIVERY QUOTED

Unless otherwise agreed in writing, if RN prepays freight, insurance, custom and import duties (if any), landing and delivery charges and all other charges in connection with shipment and delivery of goods, then any such charges shall be to the Customer’s account. RN reserves the right to nominate the means of delivery.

18) FORCE MAJEURE

If the performance of RN’s obligations under these Terms or any relevant Sales Contract is prevented, restricted or affected by force majeure including strike, lock out, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of RN, RN will give notice of such cause to the Customer and after 60 days from the receipt by the Customer of such notice, either party may terminate the relevant Sales Contract without penalty.

19) DEFAULT OF CUSTOMER

a) Without prejudice to any of RN’s other rights under these Terms, if Customer fails to make any payment due to RN under these Terms, RN may, in its sole discretion, and without further liability to Customer:

i) refuse to make further supplies to 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 RN 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 RN under these Terms and under any Sales Contract.

c) In the event that RN 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 RN.

20) CUSTOMERS CANCELLATION

Unless otherwise agreed in writing by an authorised officer of RN, Customer may not cancel an order after Delivery or Service Commencement Date.

If Customer’s right of cancellation is agreed to by an authorised officer of RN in writing:

a)Where the right of cancellation is for Equipment – right must be exercised by notice in writing from Customer to RN not later than 7 days before the estimated date of shipment by the manufacturer or RN. Unless otherwise agreed between Customer and RN, upon cancellation prior to shipment of equipment any deposits paid by Customer will be forfeited and full payment is required.

b)Where the right of cancellation is for a Service, the customer may terminate:

i) before the commencement date and the Customer must pay to Relative Networks all costs incurred by Relative Networks in connection with preparation for the provision of the Service; or

ii) after the commencement date but before the end of the Term by giving 90 days written notice to Relative Networks and must pay Relative Networks an amount calculated by multiplying the Monthly Service Fee (Monthly Service Fee being base amount on execution of order or agreement plus any and all additions to services that were related in part or total to vendor terms of contract that RN had to accept to continue supply of the service) by the remaining months (or part thereof) of the Term and any outstanding charges including Establishment Fee or part thereof. Such right of termination is without prejudice to any other rights.

21) WARRANTY

a) Products are covered by manufacturers’ warranty. To the extent permitted by law, RN’s entire responsibility with respect to warranties for the Products is to pass on to Customer the benefit of any such warranties. Subject to clause 21(c), software Products are not warranted by RN under these Terms. Such software Products are warranted in accordance with the relevant licence agreements governing their use.

b) To the extent permitted by law, the manufacturers’ warranties referred to in clause 21(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 RN 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 RN 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 reasonable cost of having the services supplied again.

d) RN does not warrant that repair facilities or parts will be available in respect of any of the Products.

22) LIABILITY OF RELATIVE NETWORKS PTY LTD

a) To the extent permitted by law, RN will not be liable to Customer or any other person under any circumstances for any loss of use, profit, revenue, interest, goodwill or data, or for any injury or death to any person, or for any indirect, incidental or consequential damages sustained or incurred by Customer, whether such liability arises directly or indirectly as a result of:

i) any negligent act or omission or wilful misconduct of RN or its employees or agents;

ii) the supply, performance or use of any Products or services; or

iii) any breach by RN of its obligations under these terms or any relevant sales contract

23) CREDIT ASSESSMENT AND REPORTING

a) If any Products are supplied to Customer on credit, RN may need to disclose to a credit reporting agency certain information referred to in clause 23(c) about Customer when assessing Customer’s application for credit and managing Customer’s account with RN. Customer authorises RN to disclose such information to a credit reporting agency for these purposes.

b) Subject to RN’s obligations under the Privacy Act 1988 (Cth) as amended and any other applicable laws, RN may provide the information referred to in clause 23(c) to a credit reporting agency to obtain a consumer credit report about Customer or to allow the credit reporting agency to create or maintain a credit information file about Customer. Customer agrees that RN may disclose a credit report about it to any credit provider, debt collecting agency or RN’s insurers for the purposes of assessing Customer’s creditworthiness or to collect any overdue payments (as the case may be).

c) RN may disclose the following information relating to Customer in accordance with clauses 26(g) and (h):

i) Customer’s name and address;

ii) credit limits on Customer’s accounts;

iii) the amount of any payments which are overdue for at least 60 days;

iv) where an overdue payment has been previously reported, advice that the payment is no longer overdue;

v) Any method of payment including, but not limited to, cheques, electronic funds transfer, Bpay, credit card payments which have been dishonoured;

vi) information that, in the opinion of RN, Customer has committed a serious credit infringement; and

vii) information that RN has ceased to supply the Products and services to Customer.

d) Customer agrees that RN may obtain information about Customer from any business which provides information about the commercial creditworthiness of persons for the purposes of assessing Customer’s application to purchase the Products on credit and collecting any overdue amounts.

e) RN may refuse to supply the Products to Customer on credit on the basis of RN’s credit assessment of Customer.

24) INTELLECTUAL PROPERTY

a) 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 RN or its suppliers; and

ii) all Intellectual Property of RN or its suppliers may only be used by Customer with the express written consent of RN or its suppliers, during the continuance of any relevant Sales Contract, and such consent extends only to use essential for the purposes stated in it.

b) Customer must not register or use any trade mark(s), trade name, domain name, trading style or commercial designation or design used by RN or its suppliers in connection with the Products.

c) Customer will indemnify RN against all liabilities, damages, costs and expenses which RN may suffer or incur as a result of any work performed by RN in accordance with Customer’s specifications or as a result of the combination or use of the Products with other equipment, parts or software not supplied by RN, and which results in the infringement of any Intellectual Property of any person.

25) CONFIDENTIALITY

a) Customer acknowledges that RN has disclosed and may from time to time disclose to Customer certain confidential information and documentation of RN relating to the Products, their marketing, use, maintenance and software, including technical specifications (“Confidential Information”).

b) Subject to clause 25(e), Customer must:

i) only use the Confidential Information solely for the purposes contemplated under any relevant Sales Contract; and

ii) not, during the continuation of such Sales Contract or thereafter, disclose (whether directly or indirectly) to any third party the Confidential Information, other than is required to carry out such purposes.

c) If disclosure of Confidential Information to third parties is necessary, Customer will obtain from such third parties binding agreements to maintain in confidence the Confidential Information disclosed at least to the same extent as Customer is bound to protect RN’s Confidential Information under this clause 25.

d) Upon the expiry or termination of any relevant Sales Contract, Customer must cease to use and must return or destroy (as RN may instruct) RN’s Confidential Information in its possession or control.

e) The provisions of this clause 25 do not extend to any information which is:

i) at the time of disclosure, rightfully known to or in the possession or control of Customer and which is not subject to an obligation or confidentiality;

ii) public knowledge (otherwise than as a result of a breach of this clause 25 or any other obligation of confidentiality);

iii) approved in writing by an authorised officer of RN to be disclosed; or

iv) required to be disclosed by a government authority or by relevant laws provided that notice of any such required disclosure is first given to RN.

26) GENERAL

a) RN may amend these Terms at any time, by giving Customer notice by mail, e-mail or by posting a notice on RN’s public website. By continuing to place orders for Products, Customer will be deemed to have accepted the revised Terms.

b) Any provision of these Terms which is invalid or unenforceable will be read down to the extent necessary, and the remaining provisions will continue unaffected.

c) Customer acknowledges that some Products may be controlled under export laws in force at the time of the Sales Contract. Customer shall not export, re-export, or distribute Products, in violation of any such export control laws or regulations.

d) Customer acknowledges that certain Products may be subject to license requirements or other restrictions specific to certain transactions. Where applicable, Customer agrees to be bound by any such terms and conditions and/or restrictions and shall indemnify Ingram for any liability suffered by it arising from Customer’s breach.

e) Customer may not assign or attempt to assign any of its rights and obligations under these Terms.

f) These Terms are governed by the laws of the Western Australia and the courts of the state of Western Australia shall have exclusive jurisdiction to hear any disputes arising from or relating to this agreement.

g) RN will handle Customer’s personal information in accordance with relevant laws.

h) Customer agrees to RN collecting, using and disclosing information about Customer of the kind referred to in clause 23(c) for various purposes, including to assessing creditworthiness as outlined in clause 23(c).