This Standard Terms of Sale and Limited Warranty Agreement (“Agreement”) applies to any order, purchase, receipt, delivery, or use of any products (“Goods” or "Services") sold through Lumen IT Pty Ltd, ABN: 97 634 612 516 (“the Seller”), and the buyer (“the Buyer”) named in an offered quotation, sales confirmation, or invoice.

1. ACCEPTANCE OF ORDERS: The acceptance of all orders and all sales by the Seller are made subject to, and expressly conditioned upon, the terms and conditions contained herein. Any of the Buyer’s terms and conditions which are different from, or in addition to, those contained herein is hereby objected to and shall be of no effect unless specifically agreed to in writing by the Seller. The parties agree that the terms and conditions set forth herein constitute the sole agreement between the parties with respect to any transactions between the Buyer and the Seller herein. The Seller is not responsible for any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance offer, invoice or other document.​

2. ORDERS AND PAYMENT TERMS: Orders are not binding upon the Seller until accepted by the Seller. Terms of payment are within the Seller's sole discretion, as noted in Clause 5. The Buyer agrees to pay the total purchase price for the Goods and Services, plus applicable tax and shipping charges. Invoices are due and payable within the time period noted on the invoice, measured from the date of the invoice. The Seller may invoice parts of an order separately when this is common practice or as agreed in consultation with the Buyer in writing.

The Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods or Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, increase in price from our upstream supplier/vendor, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture). In all instances the Seller will communicate with and work with the Buyer to minimise any pricing impacts, including aiming to provide an option for cancellation should no satisfactory resolution be found should this increase exceed 5%.

Any change in the delivery dates, quantities or specifications for the Goods or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions may also result in an increase in costs and these will be passed on in a fair and equitable basis.

3. VALIDITY: Quotations are valid for a maximum period of 30 days from the date of quotation by the Seller or as otherwise specified in the quotation. Thereafter Buyer purchase orders are subject to confirmation by the Seller before acceptance.

The prices quoted by the Seller are only for the supply of those Goods and Services specified in the quotation and do not apply to any lesser quantities or additional Goods and Services supplied by the Seller unless specified in writing by the Seller prior to supply.

4. CANCELLATION OF ORDERS: Once the Buyer has placed a purchase order on the Seller for Goods, this order is binding without refund unless the Seller is able to subsequently cancel without penalty with the Seller's product manufacturers. If doing so, cancellation or restocking fees may be applied, which will be passed on to the Buyer. Cancellation of orders after shipment must be made in accordance with the return policies of the manufacturer, publisher or supplier of the Goods.

Cancellation of Services by the Buyer can be made at no charge up to five (5) business days prior to service commencement.  Any verifiable out of pocket costs incurred by the Seller up to the date of cancellation will be a cost due and payable by the Buyer. 

5. PAYMENT: Standard payment terms are 14 days from the invoice date, unless the Seller has offered extended terms to the Buyer. The Buyer shall pay the Seller by direct Electronic Funds Transfer. Past due amounts are subject to interest at 2.5% per month after 30 days from the invoice date, but not to exceed the maximum rate allowed by law. In the event of a Buyer default, the Buyer agrees to pay the Seller all costs of collection including, but not limited to, court costs, attorneys and filing fees.

6. TAXES: All prices quoted are exclusive of all Australian GST Taxes, with GST separately itemised. These taxes shall be paid by the Buyer.

7. DELIVERY/TITLE: Any delivery date given to the Buyer is approximate only and the Seller shall not be liable to the Buyer for failure to deliver on any particular date or dates. The Seller reserves the right to make deliveries in instalments. Delay in delivery of one instalment shall not give rise to a right of cancellation by the Buyer.

Notwithstanding that Title to the Goods will remain with the Seller until full payment has been received, Risk in the Goods shall pass to the Buyer immediately upon delivery to the Buyer's nominated delivery point (including a carrier or forwarder acting on the Buyer’s behalf). From the time of delivery, the Buyer assumes all risk of loss, damage, or deterioration and must insure the Goods for their full replacement value.

All shipping charges and expenses shall be paid by the Buyer. These shipping and handling fees will be quoted and added to the invoice. Title to software remains with the applicable licensor(s), and the Buyer’s rights and obligations related to the software are contained in the related license agreement and any applicable end user terms between the Buyer and the licensor(s).

If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (other than by cause beyond the reasonable control of the Buyer) then, without limiting any other right or remedy available to the Seller, the Seller may:

a) Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

b) Cancel the order and charge the buyer a cancellation fee of 20%, applicable to cancelled orders.

c) Sell the Goods at the best price readily obtainable and, after deducting all reasonable storage and selling expenses, account to the Buyer for the excess over the price under a purchase agreement (through quotation and subsequent purchase order), or charge the Buyer for any shortfall below the price under the purchase agreement.

8. SHIPMENT DISCREPANCY: The Seller is responsible for ensuring Goods are properly packed and insured in transit, according to vendor specifications and standards. Rick in Goods in transit remains with the Seller until delivery and acceptance by the Buyer in accordance with clause 7. The Seller is not responsible for damage or shortage after delivery with a reputable transportation company. All discrepancies must be reported to the Seller by the Buyer noting any visible damage on the carrier's delivery docket at the time of receipt, or shortages reported within 7 business days of arrival of the Goods.

The Buyer agrees that any employee or representative of the Buyer, such as a designated freight forwarder, may sign for and receive the Goods sold to the Buyer herein.

9. ACCURACY OF DATA/CORRECTIONS: The Seller obtains certain data directly from the manufacturer, publisher or supplier of Goods and Services and is not responsible for pricing, typographical or other errors in any such data. In addition, availability of third-party Goods and Services is subject to change without notice. The Seller reserves the right to cancel orders related to such errors or product discontinuation or unavailability, and to correct its quotation at any time, including pricing errors not detected until after the Seller's confirmation.

10. SECURITY INTEREST: The Buyer acknowledges that these Terms constitute a Security Agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA) and grants the Seller a Purchase Money Security Interest (PMSI) in the Goods and their Proceeds to secure all amounts allocated to the Goods. The Seller’s security interest shall terminate when the Seller has received all amounts due and payable for the Goods.

The Buyer agrees that the Buyer does not acquire any right to sell, assign, or dispose of the Goods until the Goods are entirely paid for. In case of default of payment, the Seller is hereby authorised to take possession of, and remove, the Goods or suspend or terminate any ongoing Services, subscriptions, or support immediately if an invoice remains unpaid past its due date, without demand or other causes, or notice of any kind, whereby all rights for action of trespass or other causes are waived, and to collect reasonable charges incidental therewith.

11. RETURNS: Other than as expressly provided in this Agreement, all sales are final and no returns will be accepted. Return Policy: The return of Goods purchased from the Seller is subject to specific manufacturer, publisher or distributor restrictions (collectively “Suppliers”). Suppliers may provide limited or no returns of the Goods. If the Supplier accepts returns, the Buyer may return the Goods and the Seller will assist in the replacement of the Goods or grant the Buyer a credit against future purchases in an amount equal to the original purchase price and freight paid for the returned Goods less any applicable restocking fees. The Buyer is responsible for shipping charges and risk of loss on all return shipments. Returns are also subject to the rights of return processes below. If the Buyer fails to return Goods within the applicable return policy period, or if the Goods do not meet the rights of return and processes set forth in this Agreement, the Goods are considered accepted by the Buyer and not returnable.

Rights of Return

a) Hardware - If permitted by the manufacturer's return policy, hardware, accessories, peripherals and parts may be returned if:

i. The packaging is unopened and still in the manufacturer's sealed package, and

ii. Returned within 14 days from the date of shipment.

b) Software - Software may be returned if permitted by the manufacturer's return policy. If the manufacturer does not allow the return of software, no returns will be accepted by the Seller.

c) Damaged Products - Packages that are obviously damaged should be refused at the time of original delivery attempt. Goods or parts damaged in shipment cannot be returned and all claims for such damage should be directed immediately to the transportation company.

d) Defective/Dead on Arrival (DOA) – The Buyer must report DOAs to the Seller’s Procurement Department within 14 days of receipt of shipment. Some manufacturers and publishers require DOAs to be handled directly through them. In such cases, Customer Service Department will provide the manufacturer's contact information.

e) Non-Returnable Goods (not all inclusive) - The following Goods cannot be returned

i. Discontinued items

ii. Special order items

iii. Items for which manufacturers will not accept returns

iv. Custom configurations of systems v. Open units, and/or units which require re-packaging

vi. Units in an unsuitable resale condition

vii. Closeout, remanufactured and refurbished Products

f) Return Process - All returns must have the return material authorisation (RMA) number issued by the Seller - If the return meets the Seller's return guidelines, the Buyer may obtain an RMA number by contacting Customer Service Department.

Please Note:

i. RMA numbers issued by the Seller are good for 15 business days only.

ii. Product authorised for return must be received within such time period at the facility identified on your RMA instructions.

iii. Clearly mark each address label of each package being returned with the RMA number.

iv. DO NOT WRITE ON THE VENDOR'S BOX.

v. The Seller strongly recommends using a reputable shipping carrier capable of providing proof of delivery, as well as properly packing and fully insuring return shipments.

vi. All returns MUST be 100% complete and contain ALL original boxes and packing material, contain all blank warranty cards, accessories and documentation provided by the manufacturer or publisher. Incomplete returns may be returned to sender or subject to a minimum 20% restocking fee at the Seller's sole discretion.

12. LICENSE TERMS: The Buyer agrees to use software products provided through these terms only in accordance with the End User Licence Agreements (EULAs) supplied with the software products from the vendors and agrees that the manufacturing vendors will have the right to enforce the terms of such end user software licence directly, as licensor, against the Buyer despite not being a party to this contract for sale. The term 'vendors' in this clause shall include those developers of products sold through Lumen IT as noted on quotations provided.

13. VENDOR TERMS: The Seller provides hardware and software solutions/products, and services to the Buyer. The Seller will identify all applicable vendor terms that apply to any Goods or Services and provide copies of, or links to the current version of those terms within any quotation or proposal for the Buyer to review and accept. The Buyer's agreement to any vendor-specific terms will be expressly confirmed in writing by the placement of a purchase order. On most occasions the Buyer will, evidenced by placing a purchase order with the Seller, have deemed to have read and agreed with the vendor terms. For avoidance of doubt, specific terms of relevance includes items such as:

• Annual CPI/functionality price increases
• True-up rules
• Auto-renewal blackout windows
• No pro rata discounts for early cancellation of pre-paid subscriptions or support

If such amended contractual clauses are required, the Buyer must engage the vendor through the Seller to initiate an amendment to any standard vendor clauses. Gaining agreement to amendments to vendor contract clauses are never guaranteed and are negotiated mostly when the sale value exceeds certain transaction thresholds as determined by each vendor. Buyers should allow up to two (2) months for such negotiations.

14. SUBSCRIPTION RENEWALS: The Customer acknowledges that many procured solutions are provided on a renewable subscription basis. For such solutions, to ensure continuity of service and administrative alignment with Vendors, the Customer must provide Lumen IT with no less than fourteen (14) days' written notice prior to the relevant Subscription Anniversary Date if the Solution is to be procured through a different reseller other than Lumen IT.

The Subscription Anniversary Date is the date specified on a license certificate or within a subscription renewal quote. This notice requirement also applies if there are any variations to the subscription, including the addition of users, devices, or modules. Failure to provide such notice may result in the automatic renewal of the subscription through Lumen IT for the subsequent term; or a payment of a service fee being 25% of the most recently provided quote.

15. FORCE MAJEURE: The Seller will not be liable for any loss, damage or delay arising out of its failure, or that of its suppliers and subcontractors, to perform obligations under the Terms of Sale due to causes beyond its reasonable control, including without limitation, acts of God, acts or omissions of the Purchaser or its agents, acts of civil or military authorities, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes (Force Majeure Events). In the event of such delay, the Seller’s performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the Force Majeure Event.

16. LIMITED WARRANTY: IN ADDITION TO THE LIMITED WARRANTY, PRODUCTS COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. YOU ARE ENTITLED TO A REPLACEMENT OR REFUND FOR A MAJOR FAILURE AND COMPENSATION FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE. YOU ARE ENTITLED TO HAVE THE GOODS REPAIRED OR REPLACED IF THE GOODS FAIL TO BE OF ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A MAJOR FAILURE. FULL DETAILS OF YOUR CONSUMER RIGHTS MAY BE FOUND AT http://www.consumerlaw.gov.au.

PRODUCTS MANUFACTURED, PUBLISHED OR PROVIDED BY THIRD PARTIES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY BY THE SELLER OF ANY KIND, EITHER EXPRESS OR IMPLIED. The Seller shall pass through to the Buyer, to the extent available, any manufacturers/publishers/suppliers written warranties associated with third-party Goods purchased from the Seller. Although third-party services and support are considered "Goods" and you may purchase such services through the Seller, the Seller is not obligated to provide the services or support. The Seller accepts no liability for any claims arising out of any act or omission, including negligence, by the third-party service provider; and any amounts associated with third-party services, including but not limited to taxes, will be collected solely in our capacity as an independent reseller of such Goods. Notwithstanding the above to the contrary, Goods which are sold “AS IS” carry no warranty whatsoever.

17. GENERAL LIMITATIONS OF LIABILITY: The Seller shall under no circumstances be liable for special, incidental, or (not reasonably foreseeable) consequential damages including loss of profit or opportunity, even if it has been advised of the possibility of such damages. The maximum liability for all direct damages, if any, arising out of any action shall be limited to an amount not to exceed the purchase price of the product. Subject to any applicable Commonwealth or State Legislation, the Seller’s liability for any such breach shall be limited, at its sole discretion, to any of the following:

a) Replacement of the goods or any part thereof;

b) Supply of equivalent goods or any part thereof;

c) Repair of the goods or any part thereof;

d) Payment of the cost of replacing the goods or acquiring equivalent goods or any part thereof;

e) The payment of the cost of having the goods or any part thereof repaired; or

f) Refund of the goods upon return.

18. INDEMNITIES: The Buyer will defend, indemnify and keep indemnified the Seller against any liability, loss, damage cost or expense directly arising out of the infringement upon the right of a third party, or negligent acts or omissions of the Buyer under this Contract,  except to the extent that such liability, loss, damage, costs or expense results from fraud, negligence or wilful misconduct of the Seller or its personnel. This indemnity shall survive the termination of this transaction and/or the completion of the transaction contemplated herein.

19. CONFIDENTIALITY & PRIVACY: To the extent that, in connection with this agreement, a party comes into possession of any information of a confidential nature of the other party (Confidential Information), each party must only use the Confidential Information of the other party solely for the purposes of this agreement, and will not disclose such Confidential Information to any third party without the other party’s prior written consent.

Confidential Information includes, but is not limited to, the details of the Products and Services, product Bills of Materials (BOMs), price information of the Product and Services, information or material proprietary to, or deemed to be proprietary to, that party; information designated as confidential by that party; information acquired by the other party solely by virtue of provision of the Services; and, trade secrets of that party.

The Seller must comply with privacy laws on Personal Information, even if the Buyer is not an organisation bound by the Privacy Act 1988 (Cth). If the Buyer is an exempted entity under the Privacy Act, then the Buyer will be treated as an entity bound by that Act under section 6EA.

20. Data Loss Disclaimer: The Seller will exercise due care and skill in the provision of any services under this agreement to minimise the risk of data loss.  The Seller’s liability for data loss caused by its own negligence or breach is not excluded by this clause. The Seller shall not be liable for any loss of data, even if such loss occurs during the provision of Services. It is the Buyer's sole responsibility to ensure all data is backed up prior to the commencement of any work by the Seller.

21. Intellectual Property (IP) for Services: The Seller retains ownership of its pre-existing intellectual property and the Buyer is granted a non-exclusive, royalty-free licence to use such pre-existing IP to the extent necessary to provide the Services.  Any IP created by the Seller during the provision of Services remains the property of the Seller unless otherwise agreed in writing.

22. MISCELLANEOUS:

A. The invalidity, in whole or in part, of any provision herein shall not affect validity of any other provision herein.

B. Any representation, warranty, course of dealing or trade usage not contained or referenced herein shall not be binding on the Seller or the Buyer.

C. No modification, amendment, rescission, waiver or other change in these terms and conditions shall be binding on the Seller unless consented to in writing by its authorised representative.

D. This Agreement sets forth the entire agreement and understanding between the Seller and the Buyer as to the subject matter, and supersedes any prior discussions, agreements and understandings of every kind and nature.

E. This Agreement will be used in conjunction with, but does not supersede, previous agreements and contracts already in place with Australian Federal, State or Local Government authorities, and is merely to complement the standing head agreements.

F. In the event any section, or portion of a section, of these Terms and Conditions of Sale are deemed unlawful or unenforceable, that section, or portion of a section, shall be stricken from the Terms and Conditions of Sale, and the remaining terms shall continue in full force and effect.

G. The Agreement and any sales of goods and services pursuant hereto shall be governed in accordance with the laws of the state of Western Australia. The parties agree that the exclusive jurisdiction and venue of any action with respect to this Agreement shall be in the exclusive jurisdiction and venue of such courts for purposes of any such action.

H. If any legal action or other proceeding is brought for the enforcement of a party’s rights under this transaction, or for a judicial declaration of rights hereunder, or as a result of a breach, default or misrepresentation in connection with any of the provisions herein, the prevailing party shall be entitled to recover reasonable attorney’s fees and other costs incurred in that action or proceeding, in addition to any other relief to which that party may be entitled.