General Terms and Conditions of Supply

1) Interpretation

a) ‘Contract’ means any contract pursuant to which Products and/or Services are supplied or to be supplied by Shearwater Solutions (Shearwater) to the Customer and computer software incorporated therein is licensed or to be licensed by Shearwater for use by the Customer.
b) ‘Customer’ means the person or company to whom Products and/or Services are supplied and includes that company’s successors and permitted assigns.
c) ‘Shearwater’ means Shearwater Solutions Pty Ltd, the supplier of Products and/or Services to the Customer, and includes Shearwater’s successors or assigns.
d) ”Products and/or Services’ means the products and/or services supplied by Shearwater to the Customer pursuant to a Contract and specified on the invoice dispatched by Shearwater to the Customer.

2) Operation

a) ‘Any Contract between the Customer and Shearwater shall be upon these terms and conditions and this Contract shall prevail over any prior arrangements or agreements, written or oral.
b) ‘The continued operation of these terms and conditions shall not be affected by any repudiation of any contract or transaction relating to the Products and/or Services between Shearwater and the Customer.

3) Terms of Payment

a) Unless the Customer is an approved account Customer, payment must be made prior to dispatch of Products and/or Services, either in cash or by bank cheque, or on approval, by company cheque, direct deposit or accepted credit card. Subject to special arrangements, payment must be made by approved account Customer within agreed terms.
b) Should the Customer elect to purchase the Products through lease, the Customer is required to notify Shearwater in writing and a copy of the approved finance letter must be sent to Shearwater prior to the dispatch of Products.
c) All payment shall be made on or before the due date as a condition precedent to future supplies under the contract pursuant to which the payments are due or under any other Contract.
d) Shearwater reserves the right to charge interest calculated at 2% per annum above the rate at the time being charged by the bankers of Shearwater on overdrafts exceeding $100,000 on the balance of the Price due by the Customer but unpaid from the due date until payment is received in full by Shearwater.
e) Shearwater may at any time and from time to time alter the terms of payment and such altered terms of payment shall apply in respect of all transactions taking place after notification of such alterations.

4) Goods and Services Tax (GST)

Shearwater is registered for the GST system. All quoted prices show the Shearwater sell price, a Goods and Services Tax of 10% and/or a combined total which defines the invoice price payable. Shearwater agrees to issue tax invoices in accordance with relevant legislation or regulations that apply to the GST from time to time.

5) Delivery

a) In consideration of the payment by the Customer, in addition to the price, of Shearwater’s freight, handling and insurance charge calculated according to Shearwater current prices, Shearwater will arrange delivery of Products to the Customer’s nominated location within major metropolitan areas of Australian capital cities.
b) Delivery times quoted by Shearwater are estimates only and Shearwater may extend delivery times.
c) Shearwater may make part delivery of any Products and/or Services ordered by the Customer and any Products and/or Services so delivered shall constitute a separate contract upon these terms and conditions. As such, an invoice on any Products and/or Services part delivered is due in accordance with the agreed terms of payment.
d) Delivery of Products is deemed to take place: at the time the Customer or a carrier, whether engaged by Shearwater or the Customer, takes possession of the Products; or within 7 days of notification by Shearwater to the Customer that the Products are available, whichever first occurs.
e) Delivery of Services is deemed to take place on completion of the provision of the Services to the Customer by Shearwater.

6) Cancellation or Variation

An order may be cancelled or varied by the Customer only if such cancellation or variation is accepted by Shearwater in writing and any such cancellation or variation shall only occur on terms which will provide for Shearwater to be compensated by the Customer against any costs or loss (including but not limited to loss of profit) incurred.

7) Title and Licence

a) Prior to full payment of the Price and all other sums owing by the Customer to Shearwater in relation to any Products, the Customer shall have no right to sell or dispose of any or all of the Products.
b) Until payment for the Products has been made by the Customer the Products are only entrusted to the Customer as a fiduciary, and Shearwater remains the legal and beneficial owner of the Products with full power to resell and regain possession in the event of the Customer’s default of payment.
c) The Customer acknowledges and agrees that all rights in all copyright, designs, patents and trade marks existing in relation to the Products or Services are reserved to the owner of those rights.
d) The Customer licenses computer software incorporated within any Products or sold to the Customer for the customer’s use only.
e) The Customer shall ensure that each part and copy of the computer software licensed for the use of the Customer is kept under conditions of strict security and confidentiality.

8) Risk and Insurance

a) The Customer assumes risk of loss or damage upon delivery of the Products to the Customer or collection of the Products by the Customer or by any agent acting on their behalf.

9) Returns

a) Products may be returned provided the Customer obtains from Shearwater a Return Authorisation (RA) Number in advance of returning the Products.
b) Freight is to be paid by the Customer and Shearwater accepts no responsibility in respect of returned Products lost or damaged in transit.

10) Warranty

Shearwater agrees that all warranties as are applicable from time to time will be passed unaltered from the manufacturer of the Products to the Customer. Shearwater does not warrant any Products of its own accord and all remedies, repairs or replacement for any Products will be at the ultimate discretion of the manufacturer.

11) Limitation of Liability

a) Shearwater shall not be responsible for any misinformation provided to it by the Customer or any third party.
b) Shearwater limits its liability for any loss or damages attributable to the provision of its services (“Loss or Damage”), at its option, to the delivery of the relevant services again or payment for the relevant services to be provided again.
c) In particular, Shearwater shall not be liable for any direct or consequential Loss or Damage including without limitation, direct or indirect damages for personal injury, loss of business profit, business interruption, loss of business information or any other pecuniary loss arising out of the use of the recommendations and solutions provided under this agreement.
d) Further, the Customer agrees that it may only take action against Shearwater for Loss or Damage, such that if any of: Shearwater’s employees, directors, sub-contractors and agents; its sub-contractors’ and agents’ employees, directors, sub-contractors and agents; and so on down the line, would be liable as well as Shearwater for any Loss or Damage, action will not be taken by the Customer against such person or entity.
e) The Customer shall indemnify Shearwater and hold Shearwater harmless from and against any and all third party claims which may be asserted against or suffered or incurred by Shearwater that arise during the course of this contract unless such claims result from acts of Shearwater which constitute serious and wilful misconduct by Shearwater or are outside Shearwater’s ordinary performance of this contract.
f) For the purpose of the indemnity above, Shearwater includes: Shearwater Solutions Pty Ltd; its employees, directors, sub-contractors and agents; its sub-contractors’ and agents’ employees, directors, sub-contractors and agents; and so on down the line.

12) Confidentiality

a) Shearwater, its agents, or subcontractors shall not divulge confidential Customer information associated with any Services provided to any third party, without the Customer’s consent. However, Shearwater shall bear no responsibility for disclosure where such information or data is publicly available, is already in the possession of Shearwater, known to Shearwater, or is obtained by Shearwater from a third party.
b) This document should not be distributed to any organisation without the prior written consent of Shearwater.

13) General Provisions

a) The laws of the State of New South Wales shall govern this Contract.
b) This Contract is the entire agreement between the Customer and Shearwater and no representation or statement not expressly contained in this contract or incorporated herein by reference, shall be binding on either party.
c) Shearwater reserves the right to amend pricing provided in this quote if there is a 2% or higher variation in the AUD/USD exchange rate.