Terms and Conditions

Where extra charges are incurred on behalf of the client, in the event of delays, delivery difficulties, credit difficulties or otherwise, expenses will be billed to the client on the corresponding invoice and payable as per the Terms & Conditions of Sale.

A 10% goods and services tax will be charged on all sales invoices.

Freight charges will be payable by the client and will appear on all invoices at the rate offered by our courier company. Additional charges for VIP services, long distance, remote locations, excessive weight or size will be billed to the client.

SMS does not hold itself responsible for late deliveries, misplaced consignments, delays or any other related incident that may occur under the management of our couriers.

Client Pick-ups

You may prefer to organise your own courier, or have the equipment picked up by a client’s employee, respectively in these situations we require:-

1. Courier details including your account number
2. Two hours notice, trading terms finalised and employee identification

In the event that SMS is or has been holding stock for a confirmed order that has been awaiting payment or delivery for a length of time, which results in cancellation or postponement, SMS has the right to enforce a restocking or cancellation fee or to sell the stock in question.

After seven (7) days a $20.00 cancellation fee will apply per invoice or transaction. After fourteen (14) days, all sales are final.

Any product being returned for credit must be returned within seven (7) days from purchase, in original packaging and must be in a sellable condition. A 10% (of invoice amount) re-stocking fee will apply if the stock is not satisfactorily returned in the same order as supplied.

SMS reserves the right to not accept a product for return or credit if a discrepancy is caused being the client’s misintention, or where the product was not originally purchased from SMS.

All freight charges to SMS are the responsibility of the client.

All merchandise will remain the property of and held under ownership by SMS until fully paid. Ownership will only pass to the client when complete payment has been received.

Merchandise will only be passed over to the client without payment if:-

1. The goods have been ordered for an evaluation by our client for approval, by request for testing by our client’s client, or to promote the product during trade show or marketing activities.
2. The equipment has been supplied by SMS in goodwill for either loan, temporary replacement or client support.
3. The client becomes bailee for the equipment for a given period of time, automatically assuming responsibility for the merchandise on the event of any loss of, damage to or negligence with the equipment.

In the event of any product(s), whether in the same or modified condition, being sold whilst under evaluation without the consent of SMS, with due or otherwise intent to dishonour payment, or money owing on overdue invoices or payment outstanding as a result of uncommon business practices will result in legal action commencing seven (7) days from our written notice.

Unless trading terms have been authorised, SMS operates strictly on a cash before delivery basis by way of :-

1. Telegraphic transfer
2. Cash / Bank Cheque / Direct Deposit / Electronic transfer
3. A company or personal cheque would have to be cleared before delivery can be made

A copy of the payment confirmation must be provided to SMS prior to any courier booking or F.I.S. delivery being made. SMS may withdraw from supply on any order(s) pending delivery, if we are placed under risk financially, exposed to dishonoured cheques or bad payments, or, where the client has current financial matters to reconcile.

A $20.00 charge will apply per dishonoured cheque.

SMS provides and supports a twelve (12) months warranty (unless stated otherwise). Warranty becomes effective as of the date of invoice. SMS will refrain from processing a warranty claim if it is not returned by the client in question.

SMS is not liable for damages caused by the client mistreatment and/or improper handling.

SMS has the option to:-

1. Refuse a warranty claim if it is illegitimate
2. Repair or replace the product
3. Supply an equivalent product or credit the goods to the next order
4. Pay the cost of such a replacement or repairs on the absence of or inability to provide a stock replacement

1. The headnotes to the clauses of these terms are inserted for reference purposes only and shall in no way govern or affect the interpretation thereof.

2. Unless inconsistent with the context, the expression set forth below shall bear the following meaning:

   1. “Agreement” – shall mean these standard trading terms and conditions;

   2. “customer” - shall mean the person to whom Systems Men Services supplies product;

   3. “order(s)” - shall mean an order or orders placed by the customer at Systems Men Services for the supply of product;

   4. “product(s)” - shall mean computer hardware and/or software products supplied by Systems Men Services to the customer;

   5. “invoice” - shall mean the standard form invoice used by Systems Men Services from time to time and upon which the product supplied to the customer by the company and the price thereof, plus GST;

   6. “GST” - shall mean the Goods & Services Tax (The Goods & Services Tax Act 1999);

   7. “statement” - shall mean the monthly statement of account rendered by Systems Men Services to the customer reflecting the amount due to Systems Men Services by the customer;

   8. “services” - shall mean services rendered by Systems Men Services to the customer including the provision of the products.

   9. “days” - shall mean any day including any Saturdays, Sundays and official New South Wales public holidays;

   10. “industry terms” - shall mean those terms understood and applied in the retail computer industry, where such terms shall be given the meaning which accords most closely with the industry’s usage of the term.

   11. “SMS” – shall mean Systems Men Services.

3. In this agreement, unless the context requires otherwise :

   1. words importing any one gender shall include the other gender;

   2. the singular shall include the plural and vice versa;

   3. reference to a natural person shall include created entities ("corporate or unincorporated") and vice versa;

1. If the payment is by way of cash sale, payment shall be due on delivery otherwise payment shall be due by the customer to SMS free from deductions of any kind, set off and free of exchange, bank or other charges, by no later than 7 (seven) days from invoice date (“the payment date”) irrespective of whether the actual invoice is received by the customer on the invoice date or not.

2. In the event that the company agrees in writing to extend the payment terms past the payment date a finance charge of 1.5% (one and a half percentum) per month shall be levied on any amount for which the payment terms are extended calculated over the agreed period for extended payment.

3. An interest charge of 5% (five percentum) per month shall be levied on all amounts outstanding from the payment date;

4. SMS reserves the right to apply any payment received from the customer first to the longest outstanding debits on the customer’s account.

5. The customer may not set off any amount against sums due to SMS for product supplied, unless specifically agreed to by SMS in the form of a formal credit note or in terms of a settlement discount received by the customer in writing from SMS

6. Unless otherwise agreed in writing between the company and the customer the applicable currency shall be Australian Dollars.

7. Monthly statements will be rendered to the customer to give effect to the provisions of this clause.

8. An initial payment of 50% of the total invoice amount (as quoted) must accompany the order. An additional 20% of the total invoice amount is to be paid upon delivery of the goods. The balance of the total invoice amount is to be paid upon completion of delivery of the goods or provision of services.

1. SMS does not bind itself to accept any order, and no order shall be deemed to have been accepted, unless SMS has communicated its acceptance of the order in writing or delivered and invoiced product in satisfaction of an order.

2. No order for product may be cancelled by the customer :

   1. within 30 (thirty) days of its due delivery date;

   2. if it is a custom order (if it is an order for specific products supplied to the order of the customer and incorporating features peculiar to the order and/or differing in any way whatsoever from SMS's standard product specifications) after the acceptance by SMS of the order.

1. Prices for the products and/or services are subject to change without notice.

2. Products will be invoiced at the prices prevailing (in accordance with SMS’s price list for products and services then applicable) at the time of loading or shipment of product for delivery to the customer.

3. Notwithstanding 4.2 above, prices are subject to any increase in government-imposed duties, levies, taxes and any other like charges applicable to the product.

4. Transportation will be invoiced at the prevailing SMS rates at the time of loading or shipment of product for delivery to the customer.

1. Delivery will be made in respect of orders, as soon as is reasonably possible after an order is placed for product, or by the date specified in SMS acceptance of the order if a delivery date is specified.

2. Delivery will be deemed to have taken place on signature by the customer’s representative of a delivery note or other documentation containing the description of the product(s) ordered, or on acceptance of the delivery documents notwithstanding that the product(s) may not have been physically checked and counted on delivery.

3. No claim by the customer for a credit arising from short delivery will be accepted by SMS unless:

1. notified to SMS in writing by not later than close of business on the 3rd day after delivery of the product(s) which the customer alleges were short delivered; and

2. the consignment was physically checked, by the customer or his representative in the presence of the representatives of SMS or the carrier making the delivery, at the time when the delivery was made.

Defective product:

1. Products are considered as defective only if the defect complained about is visible on the surface of the products.

2. All claims for allegedly defective product must be submitted and recorded on SMS’s claim form duly completed in full and accompanied by photographs of the allegedly defective product and submitted in accordance with this clause.

3. In the event that any product purchased is defective, then such claim will not be considered and will be deemed to be forfeited:

   1. if the claim is not submitted to and received by SMS within 5 (five) business days of the date of invoice of the relevant product;

   2. If alleged defective product is not made available for physical inspection by SMS or its representative, and be held available for such inspection for a period of 30 days from date of submission of the claim.

4. Notwithstanding the above, no claims for genuinely defective materials shall be entertained by SMS unless it, in its sole discretion, accepts that there is a good and sufficient reason for entertaining such a claim.

1. Notwithstanding delivery of the product(s) to the customer, until the customer has effected full payment for the product(s) and any other product(s) previously supplied by SMS:

   1. legal title to the product(s) will remain with SMS;

   2. the risk in the product(s) will pass to the customer on delivery to the customer or its agent;

   3. the relationship between SMS and the customer will be fiduciary;

   4. The customer will:

      1. hold the product(s) as bailee for SMS;

      2. keep the product(s) separate from other goods; and

      3. label the product(s) so that they are identifiable as the goods of SMS;

   5. with SMS’S consent (which is given), the customer is at liberty to sell the product(s), in the ordinary course of customers business, provided that the money resulting from the sale will:

      1. be held in a separate account in trust for SMS;

      2. not be mingled with other money; and

      3. not be placed into an overdrawn account; and

   6. in the event that the customer uses the product(s) in some manufacturing or construction process of its own or of some third party then the customer will hold such part of the proceeds of such manufacturing or construction process as relates to the product(s) in trust for SMS. Such part will be deemed to equal in dollar terms the amount owning by the customer to the SMS at the time of receipt of such proceeds.

2. The customer is not an agent of SMS in any sale of the product(s)by the customer.

3. After the happening of an event of default, SMS may without demand retake possession of the product(s) and may without notice sell the product(s) on such terms and in such manner as it determines and will be entitled to deduct all expenses incurred. For the purposes of recovering possession and without limiting the generality of the foregoing, the customer irrevocably authorises and licenses SMS and its servants and agents to enter any premises where any product(s) may be stored and to take possession of the product(s). This right and license shall continue to subsist notwithstanding the termination for any reason of this agreement and is without prejudice to any accrued rights of SMS under this agreement or otherwise.

4. Notwithstanding the provisions of this clause 7 SMS may bring an action against the customer in the event of non-payment by the due date even though ownership in the product(s) has not passed to the customer;

1. Notwithstanding clause 7 above, risk in and to product sold to the customer shall pass on invoice date;

2. Where product is returned to SMS in terms of clause 6, risk remains with the customer (who remains liable to any third party to whom the defective product has been on-sold) until delivery of the defective product to SMS’s nominated representative or to SMS.

1. In an event of any breach of these conditions by the customer, SMS shall be entitled, notwithstanding clause 6 to treat all sums owing by the customer, whether or not reflected in monthly statements rendered to the customer, as immediately due.

1. The customer shall immediately, if it is a corporate body, inform SMS of any change in its membership or control.

1. In any proceedings by SMS for the recovery of any sum due by the customer for products supplied, the customer consents to the exclusive jurisdiction of the Courts of New South Wales, however SMS reserves the right to file claims in any other court having jurisdiction.

2. This agreement shall be governed in all respects by and shall be interpreted in accordance with the laws of New South Wales, notwithstanding whether or not delivery takes place within Australia, or elsewhere.

3. The customer shall be liable for all costs incurred by SMS for such recovery on a full indemnity basis, including collection commission, tracing and investigative fees, and legal fees on the attorney and own client scale and any other reasonable ancillary expenses.

4. The customer chooses for his place of service and execution the address specified in clause 15 below.

1. Additionally to the exclusions of liabilities set forth elsewhere in these conditions, and without derogation therefrom, SMS shall not, in any circumstances whatsoever, be liable for any consequential damages arising from breach of these conditions, and including breach consisting of gross negligence of SMS’s agents or servants. For clarity sake (but without limitation) this exclusion includes any claim for loss of profits arising from late delivery or nondelivery of product ordered.

2. No warranty is given, nor shall the customer be entitled to rely on any representation, concerning any product ordered.

1. No indulgence or failure by SMS strictly to enforce these terms shall constitute waiver, nor found in estoppel.

1. In the event of SMS and the customer agreeing in writing to impose any restrictions on sales by customers to third parties, the customer shall be bound to such agreement, and shall not sell the product to any such third party and/or into any such market, in conflict of such agreement.

1. The customer provides the following place of service:
   ______________________________________________
   
   ______________________________________________

1. Where the Customer is a company then the party(s) signing these terms and conditions (being a director or directors of the Customer) and/or any Credit Application Form agree that in consideration of the supply by SMS of the Product(s) to the Customer to be responsible to SMS for the total amounts outstanding, due and payable by the Customer to SMS. This guarantee is a continuing guarantee and security and the liability under it shall not be affected by SMS’s providing time or any other indulgences to the Customer.

1. A Tax Invoice signed by a representative of SMS (whose authority, qualification and appointment need not be proved):

2. setting out the amount of the purchaser’s indebtedness to the seller, shall together herewith be:

   1. prima facie proof of the amount owing to the seller;

   2. valid as a document in any court of competent jurisdiction for the purposes of obtaining provisional sentence or summary judgement against the customer;

   3. stating that the customer acknowledges his indebtedness in respect of any amounts so certified; and

   4. stating that any act or failure to act has occurred shall be prima facie proof that such act or failure has occurred.

1. If the customer is in arrears with any payment due, SMS may:

   1. without notice, set-off the amount or part of the amount of the arrears against any credit balance on any account which the customer then has with SMS, even if the amount in credit balance is not then due and payable; and/or

   2. retain any amounts which would otherwise be payable by SMS to the customer until the full payment of the arrears has been made;

   3. if any interest (including the interest portion of any instalment comprising capital and interest) is not paid on its due date, SMS may charge and recover from the customer interest on the overdue interest at the same rate as that stipulated in clause 2 above, from the date such interest became payable until the date it is paid.

1. No failure by SMS to exercise any rights and no indulgence allowed to the customer will operate as a waiver or abandonment by SMS of any of its rights.

1. No variation, amendment or consensual cancellation of this agreement or any provision or term hereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement shall be binding or have any force and effect unless reduced to writing and signed by or on behalf of the parties. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating to strictly to the matter in respect whereof it was made or given.

2. No extension of time or waiver or relaxation of any of the provisions or terms of this agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement, shall operate as an estoppel against either party in respect of its rights under this agreement.

3. If any clause or term of this agreement should be invalid, unenforceable, defective or illegal for any reason whatsoever, then the remaining terms and provisions of this agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability, defect or illegality goes to the root of this agreement.

4. The parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this agreement.

5. This agreement supersedes and replaces any other standard trading terms and conditions between SMS and the customer currently in force or as may have been in existence in the past or as agreed to in any other form, and in particular those contained on the reverse side of the SMS delivery note.