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TERMS & CONDITIONS

 

To the extent permitted by law, the following terms and conditions apply to all goods and services supplied by Complete Information Solutions Pty Ltd ACN 136 722 819 t/a Total POS Solutions (“Total POS”) pursuant to a Total POS Solutions proposal (order).

 

The Terms and Conditions set out below are to be read in conjunction with any program solution(s) and associated End User Licence agreement (“EULA”). Where an individual contract has been entered into, the following terms and conditions apply in addition to and are incorporated into such individual contracts. Nothing in these terms and conditions is intended to have the effect of contracting out of the Australian Consumer Law:

 

GOODS & SERVICES: ORDERS AND DELIVERIES

Orders for goods on credit will only be accepted from approved credit account customers. Such customers will need to have completed and submitted a Credit Application and have received confirmation of approval prior to any supply on credit.

 

Goods or 3rd party services (where applicable) may only be procured upon receipt of an order or equivalent approval from the customer.

 

Once an order or written approval has been received by Total POS, the order is considered to be a firm and binding contract of sale.

 

If the customer is not an approved credit account customer, payment is required prior to shipment of the goods or provision of any services in accordance with this agreement.

 

List prices and specifications of goods are subject to change without notice. Orders are accepted on the basis that Total POS reserves the right to vary the prices payable by customer to accord with those ruling at the date of dispatch except where prior negotiation allows an order on an alternative basis.

 

Estimated delivery dates are based on information available to Total POS and are subject to change at any time, without prior notice. Total POS is not responsible for delays in delivery caused for reasons beyond our control. Total POS is not liable for delay in delivery of the goods or services, howsoever caused.

 

Goods and Services Tax is excluded in quoted prices unless otherwise stated but will be charged to customer’s account where applicable.

 

PERFORMANCE OF SERVICES

Unless otherwise agreed, services will be performed during business hours of business days, in accordance with the applicable proposal. Total POS will perform the services utilising such resources, employees, and subcontractors as we deem appropriate.

 

PAYMENT & CREDIT FACILITIES

The customer acknowledges and agrees that the credit to be provided to the customer by Total POS is to be applied wholly or predominantly for commercial purposes.

 

Unless otherwise advised or specified in a customer document, Total POS standard terms of trade are 50% deposit upon execution of this agreement by cash or EFT, the balance being payable by cash or EFT prior to final installation and handover. A customer may apply to be considered for an approved credit account by completing the application form process and agreeing to the general terms.

 

Payment by approved credit account customers is to be made in accordance with the agreed terms of credit, the terms shown on the Invoice, or in the case of a project, the terms specified, including progress payments agreed to in the proposal.

 

  • Customers applying for a credit account agree to pay a 50% deposit upon execution of this agreement.

  • Unless a customer is an approved credit account customer payment must be made by the customer prior to delivery of goods or prior to the performance of the services.

  • Trading Terms for customers without an approved credit account, are COD in all circumstances.

 

A customer may apply to be considered for an approved credit account by completing the application form process and agreeing to the general terms and conditions. Trading terms for customers without an approved credit account are strictly COD.

 

Should full payment not be received by the agreed terms then Total POS reserves the right to remove or disable any hardware or software supplied including any hardware or software attached to the supplied hardware or software. In these circumstances, the customer accepts that Total POS shall not be liable for any incidental, consequential, direct, or indirect loss or damage this may cause including without limitation damages for lost profits, lost revenue, or goodwill.

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QUOTATION & PRICE

Quotations are open for 30 days. Quotations are not offers to supply and prices are subject to changes in costs of labour, materials, production, transport, and duty. Quotations and orders placed by the customer are based on information, instruction and detail provided by the customer. Where exact specifications of the scope, nature and extent of the work are not available at the time of providing a quotation, such quotes are estimates only.Unless otherwise stated, all prices quoted by Total POS are exclusive of GST. Where not so stated, GST will be added to the invoice price.

 

SOFTWARE LICENSES

All software solutions are licensed, not sold. All software solutions remain the sole and absolute property of the software provider. Accordingly, the licensing and use of the Software by the customer is governed by the terms and conditions of the End User License agreement (EULA). Risk in the hardware supplied by Total POS in which the software is installed shall pass to the customer upon delivery.

 

All software- sold or manufactured by Total POS including system design and data structures are protected by Australian and International copyright law. The customer must keep the software and system design and data structure confidential and prevent access to it by any party unless permitted to do so by Total POS. Software licence and support fees are subject to change from time to time without notice.

 

Total POS supplies third party subscription software services on a monthly/annual basis. In addition to such third-party software licence conditions, Total POS invoices such third party software and the customer shall pay the said subscription fees monthly / annually. Payment of the licence fees shall be made within the time stipulated. Should full payment not be made within the time stipulated, Total POS reserves the right to remove or disable any software supplied including any software or hardware attached to the supplied software. The customer accepts that Total POS is not liable for any incidental, consequential, direct, or indirect loss or damage this may cause including without limitation damages for lost profits, lost revenue, or goodwill.

 

DEFAULT & CONSEQUENCES OF DEFAULT

To the extent a customer is a credit customer, Total POS may, in its sole discretion, suspend the provision of credit to the customer at any time until all amounts owing are paid for in full.

 

If the customer does not pay any amount due by its due date for payment, the customer is liable, at the absolute discretion of Total POS to pay interest on such an overdue amount from the due date until payment is received calculated at 15% pa (1.25% per calendar month) for the number of days outstanding plus an account keeping fee of $25.00 per month.

 

If the customer owes Total POS any money, the customer shall indemnify Total POS from and against all costs and disbursements incurred by Total POS in recovering the debt including but not limited to internal administration fees, legal fees, and charges on an indemnity basis, filing fees, stamp duty, taxes, or any other fees payable, or incurred in relation to such recovery process.

 

INSPECTION, ACCEPTANCE, OWNERSHIP & RETENTION OF TITLE

Risk of loss or damage of goods passes to the customer upon delivery, or where the customer has nominated their preferred carrier, when delivered to or collected by that carrier. It is the customer’s responsibility to inspect all goods upon delivery. Unless the customer notifies Total POS in writing, to the contrary within 7 days of delivery, the goods will be deemed to have been accepted by the customer.

 

Title in the goods does not pass to the customer until the customer has made payment in full for the goods and, further, until the customer has made payment in full of all other money owing by the customer to Total POS (whether in respect of money payable under a specific contract or on any other account whatsoever). Whilst the customer has not paid for the goods supplied in full at any time, the customer agrees that property and title in the goods will not pass to the customer and Total POS retains the legal and equitable title in those goods supplied and not yet sold.

 

Until payment in full has been made to Total POS, the customer will hold the goods in a fiduciary capacity for Total POS and agrees to store the goods in such a manner that they can be identified as the property of Total POS and will not mix the goods with other similar goods. The customer agrees that whilst property and title in the goods remains with Total POS, Total POS has the right, with or without prior notice to the customer, to enter upon any premises occupied by the customer (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the customer) to inspect the goods of Total POS and to repossess the goods which may be in the customer’s possession, custody or control when payment is overdue. The customer will be responsible for Total POS’ costs and expenses in exercising its rights under this clause.

 

Where Total POS exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the customer against Total POS, its employees, servants, or agents.

 

The customer agrees that where the goods have been retaken into the possession of Total POS, Total POS has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the customer on those goods, and the customer hereby grants an irrevocable licence to Total POS to do all things necessary to sell the goods bearing the name or trademark of the customer.

 

For the avoidance of doubt, Total POS’ interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.

 

CANCELLATION OF TERMS OF CREDIT

Total POS reserves the right to withdraw credit at any time, whether the customer is in default under the terms of this agreement or not. Upon cancellation with or without notice all liabilities incurred by the customer become immediately due and payable to Total POS.

 

INDEMNITY

The customer agrees to indemnify Total POS and keep Total POS indemnified against any claim. This indemnity includes any legal fees and expenses Total POS incurs in order to enforce its rights, on an indemnity basis.

 

PROVISION OF FURTHER INFORMATION

The customer undertakes to comply with any request by Total POS to provide further information for the purpose of assessing the customer’s creditworthiness, including an updated credit application.

 

If the customer is a corporation (with the exception of a public listed company), it must advise Total POS of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders Total POS may ask for new guarantors to sign a guarantee and indemnity.

 

SERVICES WARRANTY

Total POS warrants to use commercially reasonable efforts to perform the services (including the provision of associated materials) in accordance with a proposal and any milestones set out therein, and that all services will be provided with due care and skill.

 

GOODS WARRANTY

Nothing in this clause affects a customer’s rights under the Australian Consumer Law.

 

Unless specified otherwise and in addition to any rights the customer may have under statute, goods sold by Total POS will carry the warranty provided by the manufacturer of the goods. Total POS cannot provide any additional or implied warranty in relation to the goods.

 

AUSTRALIAN CONSUMER LAW

Total POS’ goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, the customer is entitled:

  • a. to cancel its service contract with Total POS; and

  • b. to a refund of the unused portion, or to compensation for its reduced value.

 

The customer is 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, the customer is entitled to have the failure rectified in a reasonable time. If this is not done, the customer is entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. The customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

 

MISCELLANEOUS

Total POS is not liable for any loss caused to the customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Total POS' control.

 

In relation to the supply of goods, Total POS’ liability is limited to:

  • (a) replacing the goods or supplying similar goods;

  • (b) repairing the goods;

  • (c) providing the cost for replacing the goods or for acquiring equivalent goods; and

  • (d) providing the cost for having the goods repaired.

 

In relation to the supply of services, the Total POS liability is limited to:

  • (a) supplying the service again; or

  • (b) providing for the cost of having the services supplied again.

 

Total POS is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the customer.

 

GOODS, RETURNS AND REFUNDS

The customer will be deemed to have accepted goods unless it notifies Total POS in writing of non-acceptance within 7 days of delivery.

 

Total POS will not accept the return of the goods unless such return is expressly authorised by Total POS.

 

To the extent permitted by law, Total POS limits its liability for any loss or damage caused by or arising out of the use of the goods, or arising out of failure, malfunction, or deterioration of such goods, to the cost of repair or replacement of the goods.

 

The process for returning goods for repair under manufacturer’s warranty varies depending on the manufacturer. Total POS will comply with its statutory obligations in this regard.

 

PRIVACY

The customer agrees to Total POS collecting, using, and disclosing certain personal information about the customer for various purposes, including to:

 

  • assess credit worthiness;

  • supply the products and services to customer and the management of customer’s account, including Total POS;

  • communicate with customer about the Products and services which Total POS may provide to customer;

  • implement these Terms and the Credit Terms; and

  • comply with relevant laws.Total POS will handle customer’s personal information in accordance with the provisions of the Privacy Act 1988.

 

GENERAL PROVISIONS

This agreement is and terms and conditions are to be read in conjunction with the order and the EULA and constitute the entire agreement between the parties. No modification or alteration of any part of this agreement, terms and conditions, order or the EULA will be valid unless evidenced in writing and signed by a duly authorised representative of each party.

 

The provisions of this contract are enforceable independently of each of the others and if a provision is or becomes illegal, invalid, void or deemed unenforceable, it shall not affect the legality, validity, or enforceability of any other provisions of this contract. Waiver failure or delay by either party to enforce any provision of this contract shall not be deemed waiver of future enforcement of that or any other provision.

 

The customer acknowledges and agrees that this agreement will be governed by the laws of Tasmania, and the laws of the Commonwealth of Australia which are in force in Tasmania.

 

The customer acknowledges and agrees that any contract for the supply of goods or services between the Total POS and the customer is formed at the address of Total POS. The parties to this agreement submit to the non-exclusive jurisdiction of the courts of Tasmania and the relevant federal courts and courts competent to hear appeals from those courts.

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