The supply of goods by B&W Media Pty Ltd ("we" or "us" or "our") to all its registered users ("you") is offered only and exclusively on the following terms and conditions. By requesting, ordering or otherwise permitting us to supply goods to you, you hereby accept irrevocably and unconditionally our offer without derogation or qualification.
In these conditions:
"Conditions" means these Terms and Conditions;
"Registered User", "Customer" or "you" means a person, firm or corporation, jointly and severally if more than one, that requests goods from us;
"goods" means all products and other goods (including any software or digital documents) supplied by us to you or on your behalf;
"including"is not a word of limitation and means without limitation;
"services" means all services performed by us for you or on your behalf;
"business hours" means Monday to Friday 9am to 5pm AEST/ADST;
"B&W Media Pty Ltd" or "we" or "us" or "our" means B&W Media Pty Lid (ABN 50 110 707 965); and
"Party" and "Parties" means (severally and not jointly) B&W Media Pty Ltd and/or the Customer as the context requires.
2.1 Unless otherwise agreed by us in writing, these Conditions apply to every supply of goods by us to you and cannot be varied, amended or supplemented by any other terms or conditions without our prior written consent.
2.2 Any written quotation provided by us to you concerning the proposed supply of goods is valid for 30 days and is an invitation only to you to place an order based upon that quotation. These Conditions may be supplemented by additional terms in our quotation which are not inconsistent with these Conditions.
3.1 Payment for goods and services must be made prior to the supply of the goods to you.
3.2 The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods shall pass to you immediately upon delivery of the goods to the premises nominated by you.
4.1 Any period or date for delivery of goods stated by us is intended as an estimate only and is not a contractual commitment. We will use our reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.
5.1 When we sell you software or digital media files, we may be selling such media or software on behalf of a third party manufacturer or licensor. We do not warrant that the operation of any software we install or service will be uninterrupted or error free. You acknowledge that software (and information technology and communications products generally), including your software, may have errors and may encounter unexpected problems, and accordingly, you may experience downtime and errors in the use of software. You also acknowledge that your use of such software may be subject to a third party licence.
5.2 We shall honour all terms (if any) that are implied under applicable State and Commonwealth laws concerning the supply of the goods and nothing in this clause 5 seeks to restrict, modify or exclude such terms. Our express warranty and guarantee are in addition to and do not affect your statutory rights and remedies.
5.3 We will comply with our obligations under the Privacy Act 1988.
6.1 You shall be solely responsible for all data inputs, the manner of use of the goods by all those to whom it provides access and all outputs derived, and all other results of such processing.
6.2 You shall comply, at your own expense, with any recommendations and guidelines with respect to the use of the goods, including any adjustments or replacements required in respect of equipment and software that is incidental or collateral to the use of the goods.
6.3 You shall ensure that your operators are adequately trained and informed as to the use of the goods and shall comply with guidelines and procedures supplied by us and/or any third party manufacturer from time to time.
6.4 You shall promptly report errors or faults in the operation of any aspect of the goods in accordance with applicable fault reporting procedures from time to time.
6.5 You shall perform general "housekeeping", testing, adjustment and/or maintenance as recommended by us in respect of any goods supplied by us in order to maximise the availability of and performance of the goods or permit performance by us of any of our obligations hereunder.
6.6 You agree to exercise due care and carry out such precautions which may be recommended by us or otherwise required as a matter of prudence in connection with the performance by us of any of our obligations hereunder.
7.1 To the full extent permitted by applicable law, all conditions, warranties, representations, indemnities and guarantees with respect to the goods, or other goods that may be provided by B&W Media Pty Ltd under these Conditions, that may otherwise be implied by statute, law, equity, trade custom, prior dealings between the Parties or otherwise (including, but not limited to, any implied warranty of merchantability, fitness for particular purpose, quiet enjoyment or non-infringement) are hereby expressly excluded.
7.2 Except to the extent specifically provided in these Conditions, our sole liability to you for any and all breaches of any term or terms of these Conditions, whether express or implied, shall be limited to:
7.2.1 subject to sub-clauses 10.2.2 and 10.2.3, the aggregate amount of the fees and charges paid by you under these Conditions as at the date of the breach;
7.2.2 in relation to goods if supplied to you as a consumer (as defined in the Trade Practices Act 1974):
(a) the replacement of the goods or the supply of equivalent goods; or
(b) payment of the cost of replacing the goods or acquiring equivalent goods; or
(c) the repair of the goods or payment of the cost of having the goods repaired, as in each case we may elect; and
7.3 In no event shall we be liable to you or to any third party under or in connection with these Conditions or in respect of the use of (or failure or performance of) the goods or the supply of the services for:
7.3.1 malfunctions or failures caused directly or indirectly by:
(a) any third party;
(b) our actions that were expressly or impliedly authorised by you, or by your employees or agents;
(c) accident, misuse or abuse by anyone other than us;
(d) alteration or modification of the goods by anyone other than us;
(e) products (including any hardware or software) not licensed or supplied by us that are attached to or used with the goods;
(f) your failure to provide a proper operating and working environment for the goods;
(g) damage during any movement, relocation or re-installation of the goods;
(h) power surge or failure,
(i) acts of God or acts outside our reasonable control;
(j) any other condition not arising under normal operating conditions; or
(k) normal wear and tear; or
7.3.2 any loss or damage of any nature arising or caused directly or indirectly by any breach of your obligations or responsibilities set out in these Conditions.
7.4 Any replacement of parts under warranty will be carried out at the premises nominated by us. The cost and risk of transport of any defective part to the nominated premises is your responsibility.
7.5 In no event will we be liable to you or to any third party under or in connection with these conditions or in respect of the use of (or failure or performance of) the goods for:
7.5.1 any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
7.5.2 your liability to any third party; or
7.5.3 incidental, consequential, special, exemplary or punitive damages of any nature, howsoever arising or caused, including without limitation the breach of these Conditions or any expiration or termination of these Conditions, whether such liability is asserted on the basis of statute, contract, tort (including negligence or strict liability), equity or otherwise, even if we have been advised of the possibility of such loss or damage.
7.6 We will not be liable for any loss or damage suffered by you where we have failed to meet any delivery date or cancelled or suspended the supply of goods.
7.7 Nothing contained in these Conditions excludes, restricts or modifies any:
7.7.1 implied condition, warranty or other implied obligation in relation to these Conditions or the goods and services where pursuant to applicable law to do so is unlawful or void; or
7.7.2 liability for fraud or deceit; or
7.7.3 liability for death or personal injury caused by the negligence of either Party.
8.1 You hereby warrant that you have a valid licence in respect of such software and shall indemnify us and hold us harmless against any loss, damage, costs, harm or other expense whatsoever arising either directly or indirectly as a result of you using digital media with your software.
9.1 If, through circumstances beyond our reasonable control, we are unable to effect delivery or provision of goods, then we may cancel your order (even if it has already been accepted) by notice in writing to you.
10.1 You acknowledge that neither we nor any person acting on behalf of us has made any representation or other inducement to it to enter into these Conditions, except for representations or inducements expressly set out in these Conditions.
10.2 You acknowledge and confirm that you do not enter into these Conditions in reliance on any representation or other inducement by or on behalf of us, except for representations or inducements expressly set out in these Conditions.
10.3 Without limiting the generality of clauses 11.1 and 11.2, you understand and hereby confirm that:
(a) your decision to enter into these Conditions was, and is, not based on any promise, representation, statement, warranty or undertaking made or given by us or any person on its behalf in relation to the capacity, uses or benefits that might or would be derived or obtained from the goods, except as expressly set out in clause 5, and
(b) you have relied on your own skill and judgement in deciding to purchase and acquire the goods.
11.1 To the extent permitted by law, in relation to its subject matter, these Conditions:
11.1.1 embody and constitute the entire legal and contractual relationship of the Parties, including the entire terms agreed by the Parties; and
11.1.2 supersede, replace and terminate by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the Parties.
12.1 This Agreement is governed by and must be construed according to the law applying in New South Wales. The Parties hereby irrevocably submit to the jurisdiction of the courts of New South Wales.