Synergy Terms and Conditions of Supply AU

Definitions

1. Defined Terms: In these terms, the following terms shall have the meanings specified:
   customer - 
   Where these terms are attached to a credit application, the entity specified within credit application; where these terms apply to the purchase of equipment, services or consumables from Synergy, the purchaser of that equipment or those services or consumables.
   data services - 
   All services provided by Synergy relating to collection and analysis of data, including but not limited to capturing data, processing data into software or other data packaging, and interpretation of data for the customer’s purposes (collectively “data”).
   equipment - 
   Any equipment supplied by Synergy to a customer.
   goods -
   equipment, consumables, and any other items or products including software and intangibles.
   services - 
   Any services supplied to a customer by Synergy including but not limited to data services. Without limitation services includes calibration of equipment on sale; and services provided upon a consultancy basis.
   Synergy - 
   Synergy Positioning Systems LLP and any other member of the Synergy Group of companies which supplies goods and services to the customer.
   this contract - 
   Includes the terms of any agreement between Synergy and a customer and these terms and conditions
2. These terms shall apply to all supplies of goods and services by Synergy to the customer except to the extent specifically confirmed in writing to the customer by Synergy.
3. These terms and conditions include all information included in, and terms of, any Application for Credit account supplied by the Customer to Synergy.

Payment

1. Invoices for goods or services with a value less than AUD $10,000 - payment is to be made without deduction not later than the 20th day of the month immediately following date of invoice.
2. Invoices for goods or services with a value of greater than AUD $10,000 - payment is cash on delivery (C.O.D.) and the full invoice amount is due unless alternative arrangements are made prior to order confirmation.

Guarantee and Indemnity

1. In consideration of Synergy agreeing to enter into these terms, the Guarantor:
   
   1. unconditionally and irrevocably guarantees to Synergy the due payment by the Customer of all amounts payable by the Customer, and the due performance and compliance by the Customer of its obligations to Synergy and undertakes that if, for any reason, the Customer does not pay when due any amount payable by the Customer, the Guarantor will pay the relevant amount on demand by Synergy; and
   2. as a separate and continuing undertaking, unconditionally and irrevocably undertakes to Synergy that, should any amounts not be recoverable from the Guarantor under clause 3.1.1 for any reason, whether or not that reason is or was known to Synergy, the Guarantor will, as a sole and independent obligation, pay to Synergy on demand the amount which Synergy would otherwise have been able to recover (on a full indemnity basis).
2. The Guarantor is liable under these terms as a sole and principal debtor. The Guarantor is not to be discharged, nor are its obligations to be affected, by anything which, but for this clause, would or might have discharged the Guarantor or affected its obligations. The Guarantor’s obligations under this contract are by way of continuing security, are in addition to any other security or guarantee held at any time by any person and may be enforced without Synergy first taking any steps against the Customer, any other person or any security.

Claims for Defects, Damage, Loss or Non-Delivery

1. The customer’s order shall indicate the place for delivery of the goods and delivery shall be completed upon arrival of the goods at the place specified by the customer. Synergy will use its best endeavours to deliver goods on the date/s requested by the customer but shall have no liability whatsoever if unable for any reason to do so.
2. Partial deliveries or delivery in instalments are at Synergy’s discretion.
3. Where delivery is requested urgently by the customer, all charges for delivery will be charged to the customer.
4. The customer must inspect the goods on delivery and must, within 7 days of delivery, notify Synergy of any alleged defect, shortage in quantity, damage or failure to comply with description or sample.
5. The customer must afford Synergy an opportunity to inspect the goods within a reasonable time following notice and before any use is made of them.
6. If the customer fails to comply with these provisions, the goods shall be deemed to be in accordance with the agreement and free from any defect or damage which would be apparent on a reasonable examination of the goods and the customer shall be deemed to have accepted the goods, and to have waived any and all claims arising consequent upon any unidentified defect(s) in the same, except for defects that are not identifiable by visual inspection.
7. The customer must notify Synergy of any non-delivery of the full anticipated consignment of the goods within 7 days of the date of despatch as recorded on the invoice. Regardless of the receipt by Synergy of any such notice, a signature on a carrier’s delivery advice sheet recording the delivery of the correct quantum must be presumptive proof of the delivery of, and receipt by the customer of the goods indicated on the advice or delivery sheet.

Risk

1. Synergy shall bear risk in goods purchased by customer until the goods are delivered to the delivery address specified by customer or delivered by being uplifted from Synergy by the customer.
2. Once goods have been delivered to customer, customer shall assume all risk in them, including risk during any time in which they are in transit back to or from Synergy for repair or any other purpose, and during the times that they are under Synergy’s possession or control for repair or any other purpose.

Faulty goods

1. Faulty goods must be returned direct to Synergy’s address, freight paid by the customer, and with full details in writing of alleged defect. Synergy reserves the right to replace, repair or credit faulty goods, at Synergy’s option and dependent upon the terms of manufacturer’s warranty. Unless Synergy receives a detailed warranty claim with a repair, a normal repair charge will be made.

Warranties

1. All goods are sold to the customer by Synergy with warranties provided by the manufacturer of those goods from time to time (if any).
2. Synergy provides no warranty in addition to or in substitution for the manufacturer’s warranty.

Limitation of Liability - services

1. All data services provided by Synergy are provided “as is” without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
2. Synergy does not warrant that the data will meet the customer’s requirements or that the data will be error free.
3. The entire risk as to the quality and performance of the data is with the customer. If the data is defective, the customer (and not Synergy) assumes the entire cost of all necessary correction and all costs incurred by the customer and any other person in relation to any purpose for which the data was used.
4. Unless required otherwise by law Synergy’s total liability arising to the customer (and whether in contract or in tort, including negligence, or otherwise howsoever arising) in relation to data services is limited to the lower of the price charged to the customer by Synergy for data delivered to the customer within 2 month period immediately preceding the claim being made by the customer to Synergy, and the sum of $1000.00.
5. Unless required otherwise by law Synergy’s total liability arising to the customer (and whether in contract or in tort, including negligence, or otherwise howsoever arising) in relation to services other than data services is limited to:
   
   1. If services are provided under a consultancy arrangement between Synergy and the customer, a sum not exceeding the quantum of the invoice under which the services were charged;
   2. If the services were provided as part of the commissioning and set up of goods sold to the Customer by Synergy, or otherwise than as part of a consultancy between Synergy and the customer, to a sum not exceeding $1,000.
6. Under no circumstances shall Synergy be liable for other direct losses and any indirect, incidental, special, consequential, punitive or exemplary damages, even where Synergy had notice or knowledge of the possibility of such damages or loss.
7. The provisions of clauses 11 and 12 shall apply to services except as modified by this clause 8.

Ownership of goods

1. Title to and property in goods (whether or not any of the goods have been paid for by the customer) will not pass to the customer unless and until all amounts owing by the customer to Synergy, in respect of the goods and services directly relating to them.
2. Until title to, and property in, the goods passes to the customer:
   1. All goods are held by the customer as bailee for, and on behalf of, Synergy;
   2. The customer irrevocably authorises Synergy to:
      a) Enter into any premises or property upon which any goods are kept to repossess them, and if necessary to use forceable entry;
      b) If any goods have been attached to, or installed in or incorporated into any plant or equipment, to take all steps as may reasonably be required to remove the goods from that plant or equipment.
3. Synergy shall not be liable to the customer for any damage to plant and equipment caused during the removal or repossession of goods, and customer indemnifies Synergy against the consequence of a claim by any person relating to the removal of goods from plant or equipment, their repossession, and the entry by Synergy into premises or property.
4. Notwithstanding any period of credit allowed by Synergy, if any goods supplied to the customer are sold by the customer prior to payment for them to Synergy, then the proceeds of sale of those goods shall be kept separate and shall be Synergy’s property.

Personal Property Securities Act 2009 (CTH)

1. The Customer acknowledges and agrees that these terms and any invoice issued under these terms:
   a) constitute a security agreement for the purposes of the PPSA; and
   b) create a Security Interest in:
             i) all goods previously supplied by Synergy to the Customer (in any); and
            ii) all goods that will be supplied in the future by Synergy to the Customer.
2. The Customer undertakes to:
   a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Synergy may reasonably require to:
            i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities                       Register (“PPSR”);
            ii) register any other document required to be registered by the PPSA; or
            iii) correct a defect in a statement referred to in Clauses 10.2(a)(i) or 14.2(a)(ii);
   b) indemnify, and upon demand reimburse, Synergy for all expenses incurred in registering a financing statement or financing change statement on the PPSR established by the PPSA or releasing any goods charged;
   c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the goods in favour of a third party without the prior written consent of Synergy; and
   d) immediately advise Synergy of any material change in its business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.
3. To the extent section 115(1) allows this, sections 95, 125, 130, 132(3)(d), 132(4), 142 and 143 of the PPSA will not apply to any Security Interest created under these terms and any invoices issued under these terms.
4. To the extent section 115(7) allows this, sections 127, 129(2), 132, 134(2), 135, 136(3), (4) and (5) and 137 of the PPSA will not apply to any Security Interest created under these terms and any invoices issued under these terms.
5. The Customer waives any right to receive any notice required to be provided under the PPSA (including under sections 144 and 157) in respect of any Security Interest unless the requirement to give the notice cannot be waived or excluded.
6. The Customer shall unconditionally ratify any actions taken by the Synergy under Clauses 10.1 to 10.6 of these terms.

Customer Exemption from Liability

1. Except as otherwise provided in the Contract, the Customer agrees that Synergy is not liable for any direct, indirect, or other consequential loss or damage to the Customer or any property of the Customer including, but not limited to, loss of profits or revenue or costs arising from the loss or use of the Plant under any circumstances whatsoever and failure to deliver the goods or services by any specified date/s.
2. To the extent permitted by law:
   1. No liability whatsoever is accepted by Synergy as to the condition of the goods;
   2. Synergy is not liable for any consequential, incidental or special damages arising directly or indirectly from the provision of or use of the goods and services in any circumstances whatsoever; and
   3. Synergy’s liability in relation to goods is limited to the repair or re-supply of any defective goods. Synergy’s total liability in relation to goods shall not exceed the sum payable by the customer to Synergy in relation to the goods acquired by Synergy to which the liability relates.
   4. Synergy shall be under no liability whatsoever to the Customer or any third party for any direct, indirect and/or consequential loss and/or expense (including loss or profit) suffered by the Customer or any third party arising out of a breach by Synergy of these terms and conditions.
3. T11.3 To the full extent permitted by law, the Customer releases and discharges Synergy and its agents and employees from all claims and demands on Synergy and any loss or damage whatsoever and whenever caused to the Customer, its agents or employees, whether by way of death or injury to any person of any nature or kind, accident or damage to property, delay, financial loss, or otherwise arising directly or indirectly from or incidental to a breakdown of or defect in the good or any accident to or involving the goods or the use, operation, repair, maintenance or storage which may otherwise be suffered or sustained in, upon or near the goods..
4. Conditions, warranties and implied by the common law will not apply and are excluded from this contract and in particular, no warranty is made by Synergy concerning the performance specifications or capacity of the goods or consumables;

Customer’s Acknowledgement and Obligations

1. The customer acknowledges and agrees that:
   1. The customer has relied on its own knowledge and expertise when purchasing the goods as to their suitability for any purpose;
   2. Synergy has not given any warranties or made any representations as to the suitability of the goods for any purpose and no previous supplies or purchases of goods by the customer from Synergy is indicative that the goods are of a particular quality or type or suitable or fit for a particular purpose.
   3. If there is a modification in the design or specifications of the goods between the date on which the goods order was accepted by Synergy and the date the goods were delivered to the customer, due to a change in design or specifications by the manufacturer of the goods, the customer agrees to accept the goods as modified.
   4. If a dispute arises between the customer Synergy concerning any contract, agreement or order (including but not limited to telephone, facsimile or computer-generated orders), the internal records of Synergy will be, except in the case of manifest error, conclusive evidence of what goods were ordered by the customer.

Additional remedies of Synergy

1. If the customer:
   1. fails to make any payment due in respect of goods or services on the due date;
   2. is in breach of any term of this contract;
   3. becomes insolvent;
   4. has a receiver is appointed in respect of any assets of the customer;
   5. ceases or threatens to cease business;
   6. has an application made for the liquidation of the customer;
   7. attempts to is make any application to customer to enter into a scheme of arrangement for payment of creditors;
   8. Enters into administration;
      then without prejudice to any of Synergy’s other rights, Synergy may:
   9. suspend or cancel deliveries of any other goods or services due to the customer;
   10. appropriate any payment made by the customer to such of the goods or services (as Synergy may in Synergy’s sole discretion think fit;
   11. charge interest on the overdue sum at a penalty rate of 2.5% per month from the due date for payment to the date of payment in full;
   12. recover indemnity costs (including full solicitor and own customer costs), disbursements and expenses arising from or relating to Synergy’s enforcement or attempted enforcement of its rights, entitlements and interests under this agreement.
   13. suspend or cancel all or any part of these terms of supply and any other contract or contracts with the customer.

Force Majeure

1. Synergy is not responsible to the customer in any way if it is unable or is delayed in performing its obligations under any contract, agreement or order relating to the sale and delivery of goods to the customer, if that inability or delay arises directly or indirectly from the happening of any event not within the reasonable control of Synergy.
2. Without derogating from the provisions of clause 14.1 Synergy may suspend its obligations to perform these terms if it is unable to do so as a direct result of an act of God or other circumstance of a similar nature beyond its reasonable control, including interruptions to or surges in power supply, electromagnetic radiation or other electrical fault, fire, wind, flood, riot, war, terrorist action, industrial action, lockdown, lockout, pandemic (including COVID-19), epidemic or acts of manufacturers, suppliers, shipping agents or companies, government or other person having authority, customs authorities, port employees or contractors, or transport restrictions whether or not such circumstance existed or is known to or reasonably foreseeable to Synergy at the time that the agreement between Synergy and the customer is entered into.

Waiver

1. No exercise or failure to exercise or delay in exercising any right or remedy by Synergy will constitute a waiver by Synergy of that or any other right or remedy available to it.

Intellectual Property

1. For the purposes of this clause 16 a reference to Synergy’s intellectual property includes a reference to the intellectual property of any manufacturer of goods sold or supplied by Synergy.
2. Synergy will retain all intellectual property including but not limited to copyright and other proprietary rights in any of Synergy’s confidential information and any of Synergy’s material, including documents, drawings, certifications and instructions provided to the customer. The customer must not use any of Synergy’s intellectual property including but not limited to copyright, patents, trademarks, logos, know-how and any other type of intellectual property belonging to Synergy without the prior written consent of Synergy (such consent may be granted or withheld in Synergy’s absolute discretion). If Synergy grants its consent to the customer, the customer must not disclose, transfer, transmit or otherwise make available to any third party in any manner or form, any material or their contents or any information relating to them or the goods without Synergy’s written consent.
3. The customer must not use any of Synergy’s intellectual property including copyright, patents, trademarks, logos, know-how and any other type of intellectual property belonging to Synergy without the prior written consent of Synergy.

Information

1. In placing an order (for hire or otherwise) with Synergy, the customer (where a company, including every director and shareholder of that Company and where a partnership, including every partner) irrevocably authorises:
   1. any person or company to provide Synergy with such information as it may require to establish the customer’s credit worthiness and to meet the requirements of the Personal Property Securities Act 2009; and
   2. Synergy to provide any third party any details given to Synergy by the customer at any time collected for the purpose of placing an order or application for credit.
2. The customer acknowledges all information collected by Synergy concerning the customer is collected for the purposes set out above and may be accessed and corrected by the customer pursuant to the Privacy Act 1988.
3. All information provided to Synergy by the customer and other information received about the customer will be held by Synergy at its Head Office at 3/52 Arrenway Drive Rosedale Auckland 0632 or any alternative premises nominated by Synergy.

Service Charge

1. 10% is added to wholesale prices when dealers send their customers to our warehouse to select goods against the dealer’s order.

Change in Terms

1. From time to time Synergy may vary its terms of supply of goods and services from those contained in this document (including total replacement of terms) without prior notice. The customer accepts that any order of goods or services made following publication of Synergy’s varied terms by:
   1. The posting of varied terms of supply on Synergy’s website (www.synergypositioning.co.nz); or
   2. Synergy advising the customer of the varied terms by email or other notification in writing.
      Synergy’s rights and obligations with the customer will be subject to the varied terms with effect from the date they are placed on the website or otherwise notified to the customer unless the amended Terms and Conditions specify a later date from which they are to apply; and any claim made by the customer after publication of the varied terms, whether that claim relates to a purchase of goods or services made before or after publication of the varied terms, shall be subject to the varied terms.

Enforcement of These Terms

1. Should a Court or other body having competent jurisdiction hold that any provision of these terms is unenforceable, then that Court or other body shall be authorised to make any amendment (to the least extent possible) which it considers necessary to make that provision enforceable, and Synergy and the customer irrevocably request that such amendment be made.

Delegation Of Authority By Customer

1. Where the person entering into the contract does so for and on behalf of another person or entity as customer, the person signing covenants with Synergy that he or she has the authority of the customer to make this contract on the customer’s behalf and is empowered by the customer to bind the customer to this contract and is not released from the obligations hereof by signing on behalf of or in the name of another person or entity as customer and without limiting the foregoing hereby indemnifies Synergy against all losses and costs incurred by Synergy.