OBT's Penlink Terms & Conditions

THE CONDITIONS – SUPPLY OF EQUIPMENT

1. DEFINITIONS
In these Conditions, the following definitions apply, unless the context requires otherwise:
"Agreement" means the agreement to purchase the Products and Services formed in accordance with Condition 2.
“Application Form” means the OBT Application Form for the Penlink Service made available from OBT to You in order for You to Order the relevant products and/or services.
"Company" means a third party Lease Company as defined in the Hiring Endorsement on the OBT Application Form.
"Conditions" means the terms and conditions set out in this Agreement.
"Designated Equipment" means the hardware agreed between OBT and You and which has been supplied or approved in writing by OBT.
"OBT" means Online Business Technologies Pty Limited.
"OBT Company" means OBT and any company which owns or controls OBT or is owned or controlled by OBT.
"Hire Agreement" means any agreement relating to the Products between You and the Company for the hire, lease, rental, hire purchase, lease purchase, conditional sale or any facilities or arrangement similar to any of them.
"Hire Order" means Your order to the Company to enter into a Hire Agreement.
"Order" means Your order for the Products and/or Services by completing the supplied OBT Application Form.
"Payment Date" means 14 days after the date of the OBT invoice to You or such other payment terms as made on the OBT invoice to You.
“Penlink” means the Products and services identified on the OBT Application Form for the recording of written information using the supplied Pen (Product) on the supplied Paper (Product) and then the access to a server to attach to for the transmission of that recorded information and delivery to You in an agreed output format as stated on the OBT Application Form.
"Price" means the prices listed on the OBT application Form.
"Products" means the products (hardware and/or Software) identified as such on the OBT Application Form.
"Services" means the services identified on the OBT Application form and any other services which OBT has agreed to provide to You under this Agreement.
"You" and "Your" means the person, firm or company named on the OBT Application Form.

2. FORMATION OF AGREEMENT
2.1 These Conditions shall apply to all contracts for the sale of Products and/or the supply of Services relating to Penlink by OBT to You to the exclusion of all other terms and conditions.
2.2 Upon signing the OBT Application Form (Your Order), You are bound by these terms and conditions and as such there are no rights for cancellation unless otherwise agreed to in writing by a Director of OBT.
2.3 Your Order shall not be deemed to be accepted until:
2.3.1 a written notice of the acceptance of Your Order has been given to You by OBT; or
2.3.2 (if earlier) the Products are dispatched to You.
2.4 Any variation to these Terms & Conditions (including any special terms and conditions agreed between You and OBT) shall be inapplicable unless agreed in writing by OBT.
2.5 You shall be deemed to accept these Terms & Conditions in full by signing the OBT Application Form. No Order which has been accepted by OBT may be cancelled by You except with the written agreement of OBT and on terms that You shall indemnify OBT in full against all reasonable costs incurred including damages, charges and expenses directly or indirectly incurred by OBT as a result of such cancellation.
2.6 If You elect to enter into a Hire Agreement, OBT agrees to pass on the Hire Order to the Company but does not indicate that the Hire Order has been or will be accepted by the Company. OBT shall not at any time be taken to have accepted any Hire Order on behalf of the Company and OBT has no power to do so. In no respect does the Company act on behalf of or as agent of OBT.

3. PRICES
The Price for the Products and Services are exclusive of GST which will be charged by OBT at the rate current at the date of invoice. Except as otherwise agreed, the Price for the Products are on an ex-works basis and You shall be liable to pay OBT’s charges for transport and insurance of the Products and reasonable out of pocket travel expenses for setup & training.

4. PAYMENT
4.1 Unless otherwise agreed, You are required to make payment in full for all Products and Services not later than the Payment Date. OBT shall not be obliged to deliver Products and/or Services to You until it has received payment in full. Time for payment shall be of the essence.
4.2 Any sum not paid by the Payment Date shall be subject to interest at an annual rate of 2% above ANZ base lending rate from time to time from the Payment Date until the date You make payment in full. Interest will accrue after as well as before any judgement. You shall reimburse OBT for all costs and expenses (including legal costs) incurred in the collection of any overdue payments.
4.3 If You fail to make any payment by the Payment Date or under any other agreement between You and any OBT Company, then without prejudice to any other remedy or right available to OBT, OBT shall be entitled to suspend any further deliveries of Products and performance of the Services without liability.

5. DELIVERY AND RISK
5.1 Whilst OBT will endeavour to meet any dates or times specified or requested for delivery and installation of the Products and the performance of the Services, all such dates and times shall be estimates only. OBT shall not have any liability for any delay or for any damages or losses sustained by You as a result of such dates or times not being met.
5.2 OBT reserves the right to make deliveries in instalments. Delay or other default by OBT in relation to a particular instalment shall not relieve You of Your obligation to accept delivery of and pay for other instalments.
5.3 Unless otherwise agreed, delivery of the Products shall be to, and the installation of the Products and the performance of the Services shall be carried out at, Your address on the OBT Application Form.
5.4 All risk in the Products and Services shall pass to You:
5.4.1 in the case of Products to be delivered ex-works, at the time when OBT notifies You that the Products are available for collection; or
5.4.2 in the case of Products to be delivered otherwise than ex-works, at the time of delivery, or, if You wrongfully fail to take delivery of the Products, the time when OBT has tendered delivery of the Products.
5.5 If You do not accept delivery of the Products, fail to give OBT adequate delivery instructions or delay or prevent OBT from delivering or setting up the Products then without prejudice to any other right or remedy available to OBT:
5.5.1 OBT may on written notice to You, charge a reasonable sum in respect of any additional expense incurred by OBT; and
5.5.2 You shall be deemed to have repudiated this Agreement and OBT may terminate this Agreement in accordance with Condition 12.
5.6 OBT shall observe Your reasonable site regulations previously advised in writing to OBT. You shall provide a suitable and safe working environment for OBT’s personnel, its agents or its subcontractors.
5.7 OBT will normally carry out work during its usual Business hours but may, on reasonable notice, require You to provide access at other times. At Your request OBT may agree, exceptionally, to work outside usual working hours. You shall pay OBT’s reasonable charges for complying with such request.

6. TITLE
6.1 Notwithstanding delivery and the passing of risk in the Products, all ownership rights shall remain with OBT until OBT has received payment in full of all sums due to OBT under this Agreement. If You enter into a Hire Agreement, You recognise that, provided OBT receives payment in full for all sums due from the Company, the Company shall have title to the Products. Neither You nor the Company shall have title to the intellectual property rights in the Products. For the avoidance of doubt no title or rights of ownership, copyright or any other intellectual property in the Products, Service or Software is or will be transferred to You under this Agreement.
6.2 Unless and until OBT has received payment in full of all sums due to OBT under this Agreement, OBT shall be entitled at any time:
6.2.1 to require You to return the Products to OBT; and/or
6.2.2 to enter any of Your premises or vehicles where Products owned by OBT are present or reasonably thought to be present in order to remove the same. You shall reimburse OBT all costs and expenses reasonably incurred by OBT in connection with such removal.

7. ACCEPTANCE OF THE PRODUCTS
7.1 No Products delivered to You which are in accordance with this Agreement will be accepted for return without the prior written approval of OBT. If OBT agrees to accept the Products for return, You shall be liable to pay a reasonable handling charge. Such Products must be returned by You carriage-paid to OBT in their original shipping carton.
7.2 Products returned without the prior written approval of OBT may at OBT’s absolute discretion be returned to You or stored at Your cost without prejudice to any rights or remedies OBT may have.

8. LIABILITY OF OBT
8.1 You acknowledge and agree that:
8.1.1 You are responsible for the operation of the Products and You will ensure that they are used safely and properly and that You will use, maintain and keep them in accordance with any instructions provided by OBT and the Product Vendor; and
8.2 OBT’s policy is one of continuous development and consequently the specifications for the Products may be revised from time to time. You will not be entitled to reject the Products, or to make a claim in respect of any failure of the Products to comply with the specifications, unless any departure from the specifications is material.
8.3 Subject to Condition 8.5, OBT warrants that the Services will be provided with reasonable skill and care and that the Products will correspond materially with their specification at the time of delivery and will be free from material defects in material and workmanship for a period of 12 months from delivery. If any Products shall be found to OBT’s reasonable satisfaction not to conform to the warranty set out in this Condition, OBT’s only obligation is at its discretion either to:
8.3.1 replace or repair at a location in Australia agreed between You and OBT the defective Products; or
8.3.2 refund the Price of the defective Products in the event that the Price has already been paid to OBT by You against return of the Products.
8.4 Any repaired or replaced Products shall be redelivered by OBT to destinations (agreed between You and OBT) in Australia but otherwise in accordance with and subject to these Conditions, save that the period of 12 months referred to in Condition 8.3 shall be replaced by the unexpired portion of that period only.
8.5 OBT shall not be liable to You under Condition 8.3:
8.5.1 if the Products or Services have been misused, mishandled, overloaded, modified or used for any purpose other than in accordance with OBT’s instructions or
8.5.2 if the Products have been installed or repaired by someone other than OBT or its agents or sub-contractors and the defect results from such installation and/or repair; or
8.5.3 if the defect is due to fair wear or tear, damage, negligence, abnormal operating conditions or failure to follow OBT’s instructions; or
8.5.4 if the total Price of the Products has not been paid to OBT by the due date for payment; or
8.5.5 the service has been specified according to your design and the fault is due to Your faulty design.
8.6 You shall pay all OBT’s costs and expenses reasonably incurred by OBT:
8.6.1 in making a visit at Your request pursuant to Condition 8.3, to repair the Products where either no fault is found to exist or the fault is not covered by the warranty contained in this Condition 8; and
8.6.2 by reason of OBT being prevented from or delayed in carrying out any replacement or repair pursuant to Condition 8.3.1 by You or Your employee’s or contractor’s act or omission.
8.7 Save as expressly provided in this Agreement, all warranties, guarantees and conditions relating to the Products and Services including (without limitation) those relating to description, quality and fitness for purpose (whether express or implied by statute, common law or otherwise) are excluded.
8.8 Save as expressly provided in this Agreement, OBT shall be under no liability whatsoever to You whether contractual, tortious or otherwise in respect of any loss, damage or expense arising directly or indirectly from any defect in the Products or any failure to perform the Services by OBT and whether or not caused by the negligence of OBT, its employees, agents or sub-contractors.
8.9 In particular (but without prejudice to the generality of these Conditions 8.7 and 8.8), OBT shall not be liable for any consequential or indirect loss, damages, expenses, or for any loss of profit, loss of data, loss of goodwill or any liability to third parties which may be suffered or incurred by You in connection with the Products or OBT’s provision of the Services.
8.10 OBT’s liability to You, for any one claim or the total of all claims arising from any one act or default or any single series of acts or defaults of OBT, its employees, agents or sub-contractors, whether for negligence, breach of contract or otherwise shall not in any event exceed any sum expressly agreed in writing between OBT and You; or in the absence of such agreement, the total amount payable by You to OBT for the Products under this Agreement.
8.11 Nothing in these conditions shall:
8.11.1 restrict or exclude liability for death or personal injury caused by the negligence of OBT; or
8.11.2 if You are a Consumer, restrict or exclude liability for death or personal injury caused to You by an act or omission of OBT; or
8.12 You are required to notify OBT of any claim under Condition 8 as soon as is reasonably possible.
8.13 For the avoidance of doubt, You remain responsible for satisfying yourself that the Products and the Services ordered are appropriate for the end use or end product into which the Products are to be incorporated.
8.14 As it is not possible for software to be tested in every possible permutation, OBT does not warrant that the Software will be free of all faults or that its use will be uninterrupted.
8.15 You shall indemnify and keep OBT indemnified against all liabilities, claims, damages, losses and proceedings arising out of or in any way connected with any breach of this Agreement or act or omission by You, Your employees, agents and sub-contractors.

9. EXCUSABLE EVENTS
OBT shall not be liable in any way for loss or damage arising directly or indirectly through or in consequence of OBT being unable to perform its obligations under this Agreement as a result of any cause beyond the reasonable control of OBT. Upon the occurrence of such event, OBT may terminate this Agreement without liability.

10. TERMINATION
10.1 Without prejudice to any other right and remedy available to OBT, OBT may terminate this Agreement at any time by notice if You:
10.1.1 commit any breach of any of this Agreement; or
10.1.2 (being an individual) die, or make any arrangement with or composition for the benefit of Your creditors, (being a limited company) have a petition for Your winding-up passed or presented (other than for the purposes of amalgamation or reconstruction) or (being an individual or partnership) have bankruptcy proceedings commenced against You, or have a receiver or administrative receiver, administrator or manager appointed over the whole or any part of Your business.
10.2 If this Agreement is terminated for any reason, without prejudice to any other right and remedy available to OBT:
10.2.1 You shall immediately pay any sums due to OBT;
10.2.2 upon OBT’s written request, You shall return to OBT all Products for which You have not already paid OBT in full;
10.2.3 You shall pay all OBT’s costs, expenses and losses resulting from such termination; and
10.2.4 Your obligations and OBT’s rights under this Agreement shall continue in full force and effect until fulfilled and/or satisfied.

11. ENTIRE AGREEMENT
11.1 This Agreement, together with any documents referred to in it, constitutes the whole agreement between You and OBT relating to its subject matter and supersedes any prior agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.
11.2 No particulars, statements or descriptions whether contained in any advertising matter, catalogues, brochures, price lists or otherwise provided by OBT concerning the Products and/or the Services nor any verbal representations by any agent, employee or representative of OBT shall form part of this Agreement or be treated as constituting a representation on the part of OBT.
11.3 You acknowledge that You have not been induced to enter into this Agreement by any representation or warranty other than those contained in this Agreement and agree that You shall have no remedy in respect of any other such representation or warranty except in the case of fraud.

12. ASSIGNMENT/SUB-CONTRACT
12.1 You shall not assign, transfer or otherwise deal with or dispose of any or all of Your rights, benefits or liabilities
under this Agreement without the prior written consent of OBT, which will not be unreasonably withheld.
12.2 OBT may perform any or all of its obligations or exercise all or any of its rights under this Agreement by itself or through any third party, provided that any act or omission of any such third party shall be deemed to be the act or omission of OBT. OBT may assign, transfer or otherwise deal with or dispose of all or any of its rights, benefits or liabilities under this Agreement, provided that, if You are a Consumer such assignment does not reduce any of Your guarantees under this Agreement.

13. WAIVER
No failure by OBT to exercise, nor any delay by OBT in exercising, any of its rights, powers, privileges or remedies under this Agreement shall operate as a waiver, nor prevent OBT subsequently enforcing any right, power, privilege or remedy nor prevent OBT treating any breach by You as a repudiation of this Agreement.

14. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed and construed in accordance with the laws of New South Wales of Australia. All disputes arising under this Agreement shall be subject to the non-exclusive jurisdiction of the New South Wales Courts.

15. SEVERABILITY
If any provision of this Agreement shall be held to be invalid, illegal, void or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Agreement shall not be affected in any other jurisdiction.

16. EXPORT TERMS
You shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties on them.

17. SET OFF
Except where You are a Consumer, You are not entitled to exercise any right of set off or counter claim against any amounts due to OBT from You under this Agreement.

18. NOTICES
Should You need to deliver any notice or other communication to OBT, then it shall be sent by post or delivered by hand to OBT’s address stated on the OBT website. Where this is notice of termination of this Agreement, it shall be sent by recorded delivery. In any event, the notice or other communication shall be considered to have been delivered 48 hours after the date of posting or on delivery if delivered by hand.

19. DATA PROTECTION
19.1 OBT may disclose information regarding Your account to credit reference agencies for the purposes of performing this Agreement. OBT may also pass Your personal details to associated companies and their agents and in reply to enquiries from those concerned in the prevention and detection of crime for the purposes of OBT’s compliance with any legal obligation.
19.2 OBT may disclose your personal information to third parties in order to supply You the Products and Services.
19.3 The use of the Services by You may fall within the Australian Privacy Act 1988 or any successor legislation and if so, it is Your responsibility to ensure that You comply with the relevant legislation.

20. OBT’S OBLIGATIONS TO YOU
20.1 OBT shall take all reasonable steps to provide You with the Services during the term of this Agreement. You accept however, that it is not possible for OBT to provide the Services fault free and accordingly OBT does not guarantee to do so. You recognise that OBT is dependent upon the operational performance and activities of other organisations, mobile networks and internet service providers involved in the provision and/or use of the Services.
20.2 You accept that mobile networks and internet based services and any services that OBT subsequently connects to and the Equipment You use may affect the level of Services provided. It will also be affected by the local environment in which You are operating, the physical and geographic nature of the locality, the atmospheric conditions, and the number of people trying to send and receive data messages at any one time. You accept in addition that networks and services may fail or require maintenance without notice.
20.3 You accept that some of the Services may rely upon GPRS (General Packet Radio Service) and that the provision of the Services using GPRS is dependant upon the provision of normal mobile telephone services, power supplies and equipment which may be owned, controlled or operated by third parties or which may be subject to statutory control or which may operate under government granted licenses or permits. Accordingly, the level and quality of the Services at any time may be impaired, interrupted or suspended by any act the government or other authority or regulatory body which may now or later have responsibility for/or control over any aspect of the delivery of any part of such Services.
20.4 You also accept that the transmission and reception of GPRS and mobile telephone signals can each be interrupted, distorted or otherwise adversely affected by the presence of buildings and other structures and features, natural and man made radio interference and the affects of the atmosphere.
20.5 OBT shall provide the Services using reasonable skill and care. Save as expressly provided in this Agreement, all warranties, guarantees and conditions relating to the Services (whether express or implied by statute, common law or otherwise) are excluded.
20.6 Save as expressly provided in this Agreement, OBT shall be under no liability whatsoever to You whether contractual, tortious or otherwise in respect of any loss, damage, expense or injury arising directly or indirectly from any failure to perform the Services by OBT and whether or not caused by the negligence of OBT, its employees, agents or sub-contractors.
20.7 In particular, OBT shall not be liable for any consequential or indirect loss, damages, expenses, loss of profit, loss of goodwill, loss of data or any liability to third parties which may be suffered or incurred by You in connection with OBT's provision of the Services.
20.8 OBT’s liability to You, for any one claim or the total of all claims arising from any one act or default or any single series of acts or defaults of OBT, its employees, agents or sub-contractors, whether for negligence, breach of contract or otherwise shall not in any event exceed any sum expressly agreed in writing between OBT and You; or in the absence of such agreement the total amount payable by You to OBT in any 12 month period for the Services under this Agreement.
20.9 These Conditions shall not:
20.9.1 restrict or exclude liability for death or personal injury caused by the negligence of OBT; or
20.9.2 if You are a Consumer, restrict or exclude liability for death or personal injury caused to You by an act or omission of OBT; or
20.9.3 restrict or exclude any liability of OBT which may arise under Section 2, Supply of Goods and Services Act 1982; or
20.9.4 where You are a person dealing as a consumer (as defined in Section 12, Unfair Contract Terms Act 1977), affect Your statutory rights under the Supply of Goods and Services Act 1982.
20.10 You are required to notify OBT of any claim under Condition 12 as soon as is reasonably possible.