Terms and conditions of sale
PART A – GENERAL TERMS
1.1. All hardware and services sold by Yabby Consulting Pty Ltd ABN 92 638 556 411 (“Yabby”) to any third party (“Customer”) are sold on the following terms and conditions (“Terms”).
1.2. These Terms prevail over any oral representations between Yabby and the Customer.
1.3. Waivers or changes to these Terms will only have effect if made in writing by Yabby.
1.4. Any purchase order placed with Yabby, orally or in writing, will be confirmation of the Customer’s acceptance of these Terms.
1.5. If Yabby offers to sell Yabby Hardware Devices and/or Yabby Data Services to the Customer (whether by providing a written quotation or otherwise), the Customer may accept the offer in writing or by any conduct. Without limiting this clause’s effect, the Customer is deemed to accept Yabby’s offer by conduct if the Customer collects, accepts delivery of, or otherwise takes possession of the hardware products or uses the Yabby Data Services.
1.6. If the Customer offers to purchase Yabby Hardware Devices and/or Yabby Data Services from Yabby (whether by placing an order for hardware products with Yabby or otherwise), Yabby may accept the offer in writing or by any overt act of acceptance including, without limitation, by supplying the hardware products or the Yabby Data Services to the Customer.
2.1. The Customer expressly acknowledges and agrees that it has not relied upon, and Yabby is not liable for any advice given by Yabby, its employees, agents, or representatives in relation to the suitability for any purpose of the hardware products.
2.2. Yabby makes no representation, warranty, indemnity, or similar claim concerning the operation, performance, reliability, redundancy, fitness for particular purpose, or similar feature of the Yabby Hardware or Yabby Data Services except as specifically set forth herein.
2.3. Subject to the terms and conditions of this warranty, where your hardware products are defective within twelve (12) months of your purchase (the “Warranty Period”), Yabby agrees to do, and Yabby’s liability for any breach of any implied or imposed condition, warranty, or right in connection with the supply of Yabby Hardware Devices is limited to, one or more of the following (at the election of Yabby):
(a) replace the hardware products or supply of hardware products equivalent to the hardware products;
(b) repair the hardware products;
(c) pay the cost of replacing the hardware products or acquiring hardware products equivalent to the hardware products;
(d) payment of the cost of having the hardware products repaired;
(e) provide you with credit or a refund for the full amount of the purchase price (in the event that it is not possible to repair the hardware products, or a replacement is unavailable).
2.4. The Warranty Period commences on the date that the product is delivered to your nominated delivery address. Where no proof of delivery is available, the applicable warranty period will commence three (3) days from the date the hardware products are dispatched to you.
2.5. This warranty does not cover defects or nonconformities in the Yabby Hardware Device caused by misuse, neglect, abuse, accident, alteration, improper, improper maintenance, or modification by any third party, damage or malfunction that results from acts of God, storms, lightning strikes/bolts, or damage by livestock or other animals.
2.6. Unless otherwise provided by law, the Customer will bear any other costs incurred in making a claim under this warranty.
2.7. Where any condition, warranty or right is implied or imposed by law and cannot be excluded, Yabby limits its liability for breach of that implied or imposed condition, warranty, or right, to the fullest extent permitted by law.
2.8. Subject to cl. 2.3 and despite any implication arising from any other provisions of these Terms:
(a) to the fullest extent permitted by law, Yabby will only be liable for a safety defect (as defined in the ACL) in any good if the Customer notifies Yabby in writing of the safety defect (as defined in the ACL) in any such good within five (5) business days after the Delivery Date and Yabby accepts such liability;
(b) Yabby is not liable to the Customer, its servants, agents or contractors, in contract, in tort (including negligence), under any statute (to the fullest extent permitted by law) or otherwise for, or in respect of, any indirect or consequential loss or damage including without limitation financial loss or expense including loss of opportunity, loss of profits or loss of goodwill suffered by the Customer or any other person arising directly or indirectly out of or in any way attributable to the hardware products, or their delivery, or the process for the sale of the hardware products upon these Terms even if that loss or damage was in the contemplation of the parties at the time of the supply; and
(c) the aggregate liability of Yabby in contract, in tort (including negligence), under statute (to the fullest extent permitted by law) or otherwise for, or in respect of, any loss or damage arising directly or indirectly out of or in any way attributable to the hardware products, or their delivery, or the process of the sale of the hardware products will not exceed the price paid by the Customer for the hardware products.
2.9. In addition to the warranty set out in the preceding paragraphs, our goods and services that are sold to consumers (as that term is defined in the Australian Consumer Law) come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(a) to cancel your service contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
2.10. If you believe your Yabby Hardware Device is defective, it must be returned to Yabby for inspection by our warranty claims department.
2.11. In order to make a claim, prior to returning the hardware product, the Customer must provide Yabby with:
(a) details of the defect or damage in relation to which you are making a claim under the warranty;
(b) photographic evidence of the defect or damage, where applicable;
(c) your invoice (including order number) and any other proof of purchase; and
(d) any other details we may need to process your claim.
2.12. The Customer must comply with all return instructions provided by Yabby when making a claim under this warranty.
2.13. The Customer must pay all costs associated with shipping the product back to Yabby. We suggest you keep your receipt, as we will reimburse you for all reasonable shipping and packing expenses if we accept your warranty claim.
2.14. If Yabby accepts the Customer’s warranty claim:
(a) Yabby will provide one of the remedies set out at clause 2.3; and
(b) reimburse the Customer for the shipping costs incurred by the Customer in sending the device(s) back to Yabby.; and
(c) Any products that Yabby chooses to replace, or refund, become the property of Yabby.
2.15. If Yabby does not accept a Customer’s warranty claim:
(a) Yabby will advise the Customer of the reason and hold the device for collection.
(b) The Customer is responsible for arranging and paying for the device to be collected from Yabby and shipped back to the Customer.
(c) If your device is not collected within 30 days of Yabby notifying the Customer that your warranty claim has not been accepted, Yabby may destroy it.
2.16. Yabby Hardware Devices that are packaged incorrectly for return may be damaged in shipping, which will invalidate this warranty with respect to such Yabby Hardware Device, and may cause the Customer to incur a corresponding repair or replacement charge.
2.17. If any returned hardware products are found to be in good working order, Yabby may seek reimbursement, at Yabby’s discretion, for any costs incurred by us in relation to such hardware products. In such cases, you agree that we may hold your hardware products until such payment is received.
3 ORDERS, QUOTATIONS & PRICES
3.1. All purchase prices published or quoted by Yabby are exclusive of GST (unless Yabby advises the Customer otherwise).
3.2. The GST exclusive purchase price payable by the Customer to Yabby for Yabby Hardware Devices and Yabby Data Services is increased by the amount of GST payable by Yabby for the supply of the hardware products to the Customer. Yabby may charge to the Customer the purchase price plus GST by way of tax invoice.
3.3. Where Yabby has quoted a price it will be valid for 30 (thirty) days only or such lesser time as Yabby may specify.
3.4. The GST exclusive purchase price payable by the Customer to Yabby for Yabby Data Services will be increased annually on 01 July by a percentage equal to the annual increase in the All Groups Consumer Price Index (CPI) published by the Australian Bureau of Statistics.
3.5. Yabby reserves the right, by giving written notice to the Customer at any time to increase the price of the Yabby Data Services to reflect any increase in the cost to Yabby which is due to any factor beyond the control of Yabby (including, without limitation, any increase in Yabby’s cost of goods or services from its suppliers, foreign exchange fluctuation, or currency regulation.
3.6. Unless otherwise stated, all prices for Yabby Hardware Devices and Yabby Data Services published or quoted by Yabby are ex-works and exclusive of freight and delivery costs, insurance, and other charges in relation to the transfer of the product from the premises of Yabby to the location that the Customer designates for delivery, all of which charges are payable by the Customer.
3.7. Once an order has been accepted by Yabby, it cannot be cancelled by the Customer without Yabby’s written consent at its sole and unqualified discretion.
3.8. The supply of Yabby Hardware Devices is subject to availability. If Yabby is unable to supply all of the Customer’s order, these terms and conditions continue to apply to any part of the order supplied.
4 INTELLECTUAL PROPERTY
4.1. Yabby and/or its agents and/or suppliers own and retain all right, title, and interest in and to the Yabby Hardware and its components, the Yabby Data Service and Yabby Data Service Network, and the and all intellectual property rights therein.
4.2. The Customer must not itself, or allow others to:
(a) replicate, recreate, or reverse engineer the Yabby Hardware or its components, the Yabby Data Service or Yabby Data Service Network, or any of its protocols or otherwise interfere or tamper with the Yabby Hardware or its components, the Yabby Data Service or Yabby Data Service Network or the security of any of the foregoing or its or their related systems, or
(b) alter, merge, modify, translate, or prepare any derivative works based upon the Yabby Hardware and its components, the Yabby Data Service and Yabby Data Service Network.
5 DESIGNS, DRAWINGS & INSTRUCTIONS
5.1. Yabby will retain ownership, copyright, and all intellectual property rights in relation to all designs, drawings and specifications prepared by it for or on behalf of the Customer, despite any payment made in accordance with these terms of supply.
5.2. Yabby is not responsible for the accuracy, performance, or suitability for purpose of any designs, drawings, information, specification, or instruction provided by the Customer.
5.3. The Customer is responsible for the accuracy of any designs, drawings, information, specification, or instruction provided for use Yabby.
5.4. Where Yabby has followed any designs, drawings, information or instruction furnished by or on behalf of the Customer, the Customer indemnifies and will keep Yabby indemnified against all claims, damages, losses, penalties, costs and expenses to which Yabby may become liable by reason of using or following the designs, drawings, information, specification or instruction, including any infringement of any patent, registered design, trademark, copyright or any other right of a third party, including moral rights.
6 FORCE MAJEURE
Yabby will not be liable for any loss or damage caused by its failure or delay to supply the Yabby Hardware Devices and/or Yabby Data Services due to anything outside the reasonable control of Yabby including but not limited to acts or omissions of the Customer, breakdown of plant or machinery, shortage of labour, strikes, lockouts, industrial disputes, fire or arson, storm or tempest, floods, theft, vandalism, riots, civil commotions, terrorist actions, wars, government restrictions, intervention and/or control, transport delays, accidents or embargoes of any kind.
PART B – YABBY HARDWARE DEVICES
7 TERMS OF PAYMENT
7.1. Unless otherwise agreed, if the Customer has an approved credit account with Yabby, the Customer must pay for hardware products within 30 days from invoicing, or earlier if the approved credit limit is exceeded.
7.2. Where the Customer does not have a credit account with Yabby, all hardware products and services are to be paid in advance and Yabby is not required to deliver any hardware products to the Customer unless and until the Customer has paid for the hardware products in full.
7.3. Yabby may charge an administration fee for any payments by credit card.
7.4. Time is of the essence in respect of the Customer’s obligation to make payment for hardware products or services supplied by Yabby to the Customer.
7.5. If the Customer does not make any payment by the due date, exceeds its credit limit at any time, commits any other material breach of these terms and conditions, or an insolvency event in respect of the Customer arises or is reasonably suspected by Yabby, Yabby may (without limiting any other right or claim it may have against the Customer) do any or all of the following:
(a) charge the Customer interest calculated on a daily basis on any portion of the Customer’s account that is overdue at a rate of two and a half percent (2.5%) per calendar month calculated from the date the payment was due until the date payment is made (both dates inclusive);
(b) vary or withdraw any approved credit limit and/or terms of trade including cancelling any rebate, discount, or allowance due or payable by Yabby as at the date of the event;
(c) cancel or suspend any unfilled orders;
(d) terminate any contracts between Yabby and the Customer and demand immediate payment of any moneys due and outstanding under those contracts.
7.6. If any part of an invoice is in dispute, the balance will remain payable and must be paid when due. The Customer has no right to set-off any claim against or debt owed by Yabby from moneys owing to Yabby.
8.1. Yabby will confirm, in writing, the required delivery date (‘Estimated Delivery Date’) and destination. It is the Customer’s responsibility to advise Yabby if the Delivery Date and destination are not correct.
8.2. Yabby will use all reasonable endeavours to meet the Delivery Date, but Yabby is not and will not be liable for any loss or damage, however it arises, if the hardware products are not delivered by the Estimated Delivery Date.
9 RISK, TITLE, AND SECURITY
9.1. Risk in the hardware products sold passes to the Customer at the earlier of the following times:
(a) When the hardware products are dispatched for delivery to the Customer; or
(b) When the Customer (or any third party on the Customer’s behalf) collects or takes possession of the hardware products.
9.2. The Customer must insure the hardware products at its cost from delivery of the hardware products until they are paid for in full against such risks as are usual or common to insure against in a business of a similar nature to the Customer.
9.3. All hardware products sold by Yabby to the Customer remain the property of Yabby, and title to the hardware products does not pass from Yabby to the Customer, until all outstanding debts owed by the Customer to Yabby whatsoever are paid in full.
9.4. Where the hardware products have not been paid for in full and/or there are outstanding debts owed by the Customer to Yabby, the Customer takes custody of the hardware products on delivery and retains them only as fiduciary agent and bailee of Yabby.
9.5. Until all debts owing to Yabby have been paid in full:
(a) to the extent possible, the Customer must store the hardware products in a manner that shows clearly, they are the property of Yabby, maintain records relating to the hardware products, secure the hardware products from risk, damage and theft and ensure that the hardware products are kept in good and serviceable condition;
(b) the Customer may sell the hardware products, in the ordinary course of its business, but only as fiduciary agent of Yabby;
(c) the Customer receives all proceeds (including any proceeds from insurance claims) in trust for Yabby and must keep the proceeds in a separate bank account until all liability to Yabby is discharged;
(d) if the Customer uses the hardware products in some manufacturing or construction process of its own or of a third party, the Customer must hold in trust for Yabby that part of the proceeds of the manufacturing or construction process as is equal to the amount owing by the Customer to Yabby at the time of receipt of the proceeds.
9.6. If the Customer fails to pay any outstanding debt whatsoever that it owes to Yabby, the Customer irrevocably and to the full extent permitted by law authorises Yabby to (without prior notice to the Customer) do everything reasonably necessary to re-take possession of the hardware products owned by Yabby (including, without limitation, enter any property at which Yabby reasonably believes the hardware products to be located).
9.7. The Customer indemnifies Yabby for any loss or liability whatsoever incurred by Yabby in exercising its rights under clause 9.6. This indemnity covers (without limitation) any liability to any third party for trespass or damage to property occasioned by Yabby exercising its rights under this clause.
9.8. Yabby expressly reserves all other rights and remedies available to it on the Customer’s default on these Terms and Conditions (including, without limitation, the right to seize and dispose of or retain hardware products).
9.9. If Yabby determines that the supply of the hardware products to the Customer contains a security interest for the purposes of the Personal Property Securities Act 2009 (Cth), the Customer agrees to do anything (such as obtaining consents, signing, and producing documents, getting documents completed and signed and supplying information) which Yabby asks and considers necessary for the purposes of:
(a) ensuring that the security interest is enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective; or
(b) enabling Yabby to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by Yabby; or
(c) enabling Yabby to exercise rights in connection with the security interest.
9.10. The Customer agrees not to create any security interest or lien over any Yabby’s Personal Property.
PART C – YABBY DATA SERVICES
10 ACCESS & PAYMENT
10.1. Where ordered by the Customer, and subject to the terms of this Agreement, Yabby will provide access to the Yabby Data Services Network via a Yabby Hardware Device.
10.2. Yabby reserves the right to change or modify the Yabby Data Services, but will not materially diminish functionality of the Yabby Data Services during a subscription term.
10.3. Yabby will have the right to perform repairs, maintenance, or network upgrades on the Yabby Data Services from time to time, without prior notice to the Customer and any resulting outages of or interruptions to the Yabby Data Services shall not be deemed an outage period. Yabby will use reasonable endeavors to notify the Customer of any scheduled repairs or maintenance that may potentially impact the performance of the Yabby Data Services.
10.4. Where an annual service fee for Yabby Data Services is applicable, it will be automatically charged and paid on the date on which the hardware device is first activated by the Customer (the “Activation Date”).
10.5. The Customer will pay the price for the Yabby Data Service used by Customer in the amount and at the time set out in the Details. If Customer is using the Yabby Data Service and has not selected a method of paying for the Data Service, the Customer’s use will be automatically charged at the lowest Data Plan price unless agreed otherwise with Yabby.
10.6. If the Customer is paying for a Data Plan, the Customer may elect to pay for a larger Data Plan by notice in writing to Yabby. The Customer may only elect to pay for a smaller Data Plan on prior agreement with Yabby.
10.7. The Customer acknowledges that the Data Service may not be available in all locations, and it is the Customer’s responsibility to ensure that it is available in Customer intended use locations.
10.8. Time is of the essence in respect of the Customer’s obligation to make payment for the Yabby Data Services supplied by Yabby to the Customer.
10.9. Yabby will not be liable to the Customer for any direct, indirect, or consequential loss, damage, liability, cost, or expense incurred by the Customer as a result of the failure by Yabby to deliver the Yabby Data Service.
10.10. Yabby will use its best endeavours to ensure 90% of messages initiated by a Yabby Hardware Device, as averaged over a billing month, are delivered to the agreed Customer destination.
11 ABUSE AND FRAUDULENT USE
11.1. Access to the Yabby Data Services Network is furnished subject to the condition that there be no abuse or fraudulent use of the Yabby Data Services Network by the Customer.
11.2. The Customer will not abuse or fraudulently use the Yabby Data Services Network and will take commercially reasonable steps to control and prevent abuse or fraudulent use of the Yabby Data Services Network by others. Abuse or fraudulent use of the Yabby Network includes, but is not limited to
(a) providing or attempting to provide, or assisting, or permitting a third party to:
(i) access, alter or interfere with the communications and/or information of a Customer by rearranging, tampering, or making an unauthorized connection with any Yabby Hardware Device or network facilities of Yabby, or
(ii) use of any scheme, false representation, or false credit device, with the intent to avoid payment, in whole or in part, for the Yabby Data Services;
(b) using the Yabby Data Services Network in such a manner so as to interfere unreasonably with the use of the Yabby Data Services Network by its customers, or
(c) using the Yabby Data Services Network to convey information that is deemed, in Yabby’s sole judgment, to be obscene or unlawful.
12 INFORMATION & SECURITY
12.1. The Customer agrees that Yabby may periodically collect information, including, but not limited to, technical information and data, about the Customer’s use of a Yabby Hardware Device and the Yabby Data Services to facilitate updates, support, analysis, management, and other services relating to the Yabby Data Services Network. Yabby shall use this information for management of Yabby’s products, services, or technologies provided hereunder, which use will be in accordance with applicable laws.
12.2. The Customer agrees to provide Yabby or any regulatory authority with any information to the extent required to comply with laws and regulations applicable to the provision of the Yabby Data Services.
12.3. The Customer agrees that any information, such as data and/or records of a Customer, including, but not limited to, personally identifiable information such as name, address, identification number, and transaction information, will be subject to applicable federal and/or state, or international laws applicable to the collection, use, disclosure, processing, and free movement of such personally identifiable information.
13 TERM & TERMINATION
13.1. The Yabby Data Services agreement and the initial subscription term for the Data Services commences on the Activation Date and lasts for twelve months from that date.
13.2. The subscription term will automatically renew for successive twelve (12) month periods year renewal terms unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the commencement of any renewal term.
13.3. Without limiting other rights expressly set forth in this Agreement, either party may terminate this Agreement at any time with immediate effect by giving notice to the other party if the other party:
(a) materially breaches this Agreement and fails to cure such breach within ten (10) days for any payment related breach, or within thirty (30) days for any other breach, of the date of receipt of notice of such default from the non-breaching party specifying the grounds for such breach or default; or
(b) is subjected to bankruptcy or insolvency proceedings, whether voluntary or involuntary, including, but not limited to, the execution of an assignment for the benefit of creditors, or in the event either party hereto seeks relief under any bankruptcy or similar debtor relief laws.
13.4. Yabby may terminate this Agreement for its convenience by providing the Customer with ninety (90) days prior written notice. In the event of termination under this clause 13.4, Yabby will provide the Customer with a pro-rated refund of unused, pre-paid fees for the remainder of the term after the effective date of termination.
13.5. In the event that Yabby no longer has access to the third-party Data Network via which the Yabby Hardware Device communicates, Yabby may terminate this Agreement by notice to the Customer. In the event of termination under this clause 13.5, Yabby will provide the Customer with a pro-rated refund of unused, pre-paid fees for the remainder of the term after the effective date of termination.
13.6. Yabby has the right to immediately suspend or terminate access to the Yabby Data Services Network to any Customer abusing or fraudulent using the Yabby Data Services Network with no liability for such termination.