(“Terms of Sale”) apply to your purchase of services performed by Smart Tech or its subcontractors and/or agents (collectively, "Services"). By engaging Smart Tech to perform Services under a Statement of Work (as defined below), you agree to be bound by and accept these Terms of Sale, unless you are purchasing such Services pursuant to a separate written agreement signed by both your company and Smart Tech, in which case the terms of that separate agreement will govern. Smart Tech may, from time to time and at its sole option, revise these Terms of Sale without notice by posting them on its website at smarttechventures.au (the “Website”). The Terms of Sale posted on the Website at the time Smart Tech accepts your order govern that purchase.
The description of the scope of work and terms associated with the Services ("Statement of Work" or “SOW”), along with these Terms of Sale - Services and any attachments, schedules, addenda, and exhibits, together form the entire agreement between the parties regarding the Services to be performed by Smart Tech (the “Agreement”). The Agreement supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the relevant subject matter. Any conflicting, additional, or different terms in any other agreement, invoice, or SOW are expressly rejected, unless the modified Terms of Sale are specifically referenced and mutually agreed upon in writing under the SOW. Such modification will apply exclusively to that SOW.
Notwithstanding the foregoing, these Terms of Sale must be read and construed subject to any statutory provisions which cannot lawfully be excluded, restricted, or modified. If any such statutory provisions apply, then, to the extent that Smart Tech is entitled to do so and at Smart Tech's option, Smart Tech limits its liability under such provisions to the re-performance or refund of the cost of Services.
The Agreement commences upon execution of the relevant SOW (“Effective Date”), which incorporates these Terms of Sale, and will continue until completion of the Services, unless terminated earlier in accordance with this Section. Either party may terminate the Agreement, in whole or in part, immediately if the other party materially breaches the Agreement and fails to remedy that breach within 30 days after receipt of written notice of such breach, except that a party will have only 10 days to remedy any default of its payment obligations.
Services will be invoiced in accordance with the SOW. Services will be deemed accepted (completed) 5 days from the date of the invoice, unless otherwise specified in writing under the SOW. You must pay all undisputed invoices in full within 30 days of the invoice date, unless otherwise specified under the SOW. You agree to pay the total purchase price for the Services, plus taxes (including any GST payable), and all payments must reference the invoice number. You may provide Smart Tech with a tax exemption certificate at the time of purchase, subject to review and acceptance by Smart Tech. Unless otherwise specified, all invoices shall be paid in the currency specified on the invoice. If invoices are paid in a different currency, you agree to remit payment to Smart Tech for any losses incurred due to conversion resulting in a short-payment of such invoices.
Your order is subject to acceptance and credit approval by Smart Tech. You must provide appropriate credit references upon request and authorize Smart Tech to obtain credit history from such references. You agree to pay interest on all past-due amounts at the rate of one and one-half percent (1.5%) per month (18% per annum), or such lesser amount determined by Smart Tech, calculated monthly on the past-due amount. You will be responsible for Smart Tech's costs of collection for any payment default, including, but not limited to, court costs, filing fees, and attorneys' fees. Additionally, if payments are not received as described above, Smart Tech reserves the right to suspend performance of Services until payment is received.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO THE CCA CLAUSE:
Smart Tech warrants that Services will: (i) be performed in a timely, competent, professional, and
workmanlike manner; (ii) substantially conform to the written specifications under the SOW for 30 days from
completion, or for such other warranty period as indicated under the relevant SOW; and (iii) comply with all
laws, rules, and regulations applicable to Smart Tech's performance of the Services under the SOW.
Notwithstanding the foregoing, Smart Tech is not responsible for defaults or delays caused by your failure
to provide accurate instructions, information, access to facilities, or a suitable product or application
environment.
Your sole remedy and Smart Tech's sole obligation for breach of this Limited Services Warranty, except as set forth in any SOW that expressly amends this warranty, will be the re-performance of any deficient Services at Smart Tech's expense. If Smart Tech cannot remedy any deficient Services within 30 days of notice or such additional time as may be mutually agreed, Smart Tech will, at its option, provide a credit or refund of any fees paid for the specific non-conforming Services. No re-performance will extend any warranty period. Any credits issued to you by Smart Tech for any reason must be applied within 2 years from the date the credit is issued. If not used within such period, credits will automatically expire.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO THE CCA CLAUSE, THE LIMITED WARRANTIES UNDER SECTION 4 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND YOUR SOLE AND EXCLUSIVE REMEDIES. Smart Tech DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD.
Smart Tech retains all rights, title, and interest in any pre-existing intellectual property that it owns ("Smart Tech IP"), which may be used in carrying out Services, including any modifications or improvements made to Smart Tech IP during or as a result of the Services to be performed under the Agreement. Except for Smart Tech IP, upon payment in full of all amounts due to Smart Tech, all documents, drawings, specifications, information, patents, patent applications, inventions, developments, processes, or any copyrightable material originated and developed by Smart Tech specifically for you as part of the Services performed under the Agreement ("Work Product") shall be owned by you. Smart Tech grants you a worldwide, non-exclusive, royalty-free, perpetual license, without the right to sublicense, to use Smart Tech IP in the course of your internal business operations.
Both parties will maintain in confidence and safeguard all Confidential Information, as defined in this paragraph, of the other party, its affiliates, and its customers. "Confidential Information" means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure and includes, but is not limited to, trade secrets, know-how, inventions, techniques, data, customer lists, Personal Data (as defined herein), financial information, and sales and marketing plans of the other party, its affiliates, or its customers. “Personal Data” means any nonpublic information relating to an identified or identifiable individual that may be subject to further obligations of confidentiality under applicable privacy laws.
Both parties recognize and acknowledge the confidential and proprietary nature of any Confidential Information and acknowledge the irreparable harm that could result if such Confidential Information is disclosed to a third party or used for unauthorized purposes. Each party agrees to use any Confidential Information only for the purpose of conducting business with each other and their clients as contemplated by the Agreement. Both parties will restrict disclosures of any Confidential Information to only those personnel who have a need to know and will bind such personnel to obligations of confidentiality to the same extent that each party is bound by the Agreement. Upon request of the owner of Confidential Information, the other party will promptly return all materials incorporating any Confidential Information and any copies.
When Services are performed by Smart Tech on your premises or at another location designated by you, each party and its respective officers, directors, employees, agents, and affiliates (the “Indemnifying Party”) will indemnify, defend, and hold harmless the other party, its officers, directors, employees, agents, and affiliates (the “Indemnified Party”) from and against any damages, costs, or expenses (including reasonable attorneys' fees) incurred relating to bodily injury or death of any person or damage to tangible personal property occurring at such location in connection with the performance of the Services to the extent caused by the negligence or willful acts or omissions of the Indemnifying Party.
Neither party will be liable to the other party for any indirect, special, incidental, or consequential damages (including without limitation, loss of income, profits, data, operational efficiency, use, or information), arising under the Agreement regardless of the form of action or theory of relief, even if advised of the possibility of such damages. The total amount of direct damages recoverable from a party under the Agreement is limited to the total amount paid or to be paid by you for Services performed under the relevant SOW.
The Agreement will be governed by the substantive laws of Western Australia, Australia without giving effect to any conflict of law rules. You are responsible for compliance with local laws, if and to the extent local laws are applicable. Both parties specifically agree to submit to the exclusive jurisdiction of, and venue in, the courts of Western Australia, Australia in any dispute arising out of or relating to the Agreement.
Notices to be provided under the Agreement must be in writing and sent to the addresses as each party designates under the SOW and are deemed received upon the earlier of actual receipt or 3 days after mailing, if mailed postage prepaid by regular mail or airmail or 1 day after such notice is sent by courier or facsimile transmission.