These Terms are binding on any use of the Impos Plus Service and apply to the User from the time that Impos or one of its representatives provides the User with access to the Service.
1.1 “Agreement” shall mean the Terms, Quotation, Purchase Order, Schedule and any other relevant attachments agreed upon by the User and Impos.
1.2 “Customer Support Plan” shall mean one of the tiered levels of customer support offered by Impos to the User.
1.3 “Data” shall mean all transactional information collected, stored and used by Impos.
1.4 “EML” or “EPOS” shall mean an excel menu list spreadsheet which is used for importing menu data and pricing information.
1.5 “Fee” shall mean the price payable for Services as agreed between Impos and the User in accordance with the Schedule and Quotation.
1.6 “Guarantor” shall mean any person (or persons) or entity who agrees to be liable for the debts of the User on a principal debtor basis.
1.7 “Impos” shall mean Impos Solutions International Pty Ltd and includes its successors, representatives, assigns or any person or company acting on behalf of and with the authority of Impos Solutions International Pty Ltd.
1.8 “Outright” shall mean the outright purchase of Products subject to the Terms.
1.9 “Price” shall mean the price payable for the Products as agreed between Impos and the User in accordance with the Quotation accepted by the User as referenced on the Purchase Order.
1.10 “Products” shall mean all hardware, and any other goods supplied by Impos from time to time to the User (and where the context so permits shall include any supply of Software and/or Services as hereinafter defined) and are as described on the invoices, Quotation, work authorisation or any other forms as provided by Impos to the User.
1.11 “Purchase Order” shall mean any Purchase Order prepared by Impos and confirmed by the User.
1.12 “Quotation” shall mean the written Quotation provided by Impos to the User which was provided to the User at or about the same time as these Terms.
1.13 “SaaS” shall mean ‘Software as a Service’ and refers to the Software licence granted to the User on the Terms set out herein.
1.14 “Schedule” shall mean the Schedule attached to these Terms.
1.15 “Services” shall mean all Services supplied by Impos to the User (including the Customer Support Plan) and includes any advice or recommendations (and where the context so permits shall include any supply of Products and/or Software).
1.16 “Software” shall mean any Impos branded Software and includes any Software required for operating each individual terminal or application (and where the context so permits shall include any supply of Products and/or Services as hereinafter defined).
1.18 “User” shall mean the User (or any person acting on behalf of and with the authority of the User) as described on any Quotation, Purchase Order or any other forms as provided by Impos to the User.
2. Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by Impos from the User for the supply of Products and/or the User’s acceptance of Products supplied by Impos shall constitute acceptance of and agreement to these Terms.
3.2 Where more than one User has entered into this agreement, the Users shall be jointly and severally liable for all payments of the Price and/or Fees.
3.3 Upon acceptance of these Terms by the User the Terms are binding and can only be amended by Impos in accordance with clause 24.7 and otherwise only with the written consent of Impos.
3.4 The User shall give Impos not less than fourteen (14) days prior written notice of any proposed change of ownership of the User or any change in the User’s name and/or any other change in the User’s details (including but not limited to, changes in the User’s address, facsimile number, or business practice). The User shall be liable for any loss incurred by Impos as a result of the User’s failure to comply with this clause.
3.5 Unless specifically agreed otherwise by Impos, Products are supplied by Impos only on the Terms herein to the exclusion of anything to the contrary in the terms of the User’s Purchase Order notwithstanding that any such order is placed on terms that purport to override these Terms.
3.6 The User acknowledges that it has satisfied itself as to the suitability of the Products for its business, hereby disclaims any right to rescind, or cancel any contract with Impos or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the User by Impos and the User acknowledges that the Products are bought relying solely upon the User’s skill and judgment.
3.7 Impos makes no representation or warranties about accuracy, reliability, completeness or suitability of the Data collected or stored by the product or integration, for any particular purpose and disclaims all responsibility and all liability (including without limitation, liability in negligence) for all expenses, losses, damages (including indirect or consequential damage) and costs which might be incurred as a result of the data being inaccurate or incomplete in any way and for any reason.
4. Customer Support Direct Debit Arrangement
4.1 As per the Direct Debit Request (DDR) arrangements made between Impos and signed by the User, Impos undertakes to periodically debit the Users nominated account for the agreed amount of the User’s SaaS or Customer Support Plan Fees.
4.2 Drawing arrangements
(a) The first drawing under this Direct Debit Arrangement will occur as per the arrangement.
(b) If drawing falls due on a non-business day, it will be debited to your account on the next business day following the scheduled drawing date
(c) Impos will give you not less than fourteen (14) days notice when changes to the initial terms of the arrangement are made. This notice will state any other changes to the initial arrangement.
(d) If the User wishes to discuss any changes to the initial arrangement, please contact an Impos representative. These changes may include:
– deferring the drawing; or
– altering the schedule; or
– stopping an individual debit; or
– suspending the DDR; or
– cancelling the DDR
4.3 All enquiries should be directed to Impos, and not to a User’s financial institution, and these should be made at least five (5) working days prior to the next scheduled drawing date. All communication addressed should include the User’s Customer Name.
4.4 All User’s personal information will be kept confidential except that information provided to Impos’ financial institution to initiate the drawing to the User’s nominated account. [If information will not be kept confidential, the User may wish to explain how, why and to whom this information will be made available to]
(a) If the User believes that a drawing has been initiated incorrectly, Impos encourages User to take the matter up directly with Impos by contacting Impos head office on 1300 479 767, or by email to firstname.lastname@example.org during business hours
(b) If the User does not receive a satisfactory response from Impos, the User may contact the User’s financial institution and insist they respond to the User’s claim:
– Within five (5) business days (for claim lodged within 12 months of the dispute drawing; or
– Within thirty (30) business days (for claims lodged more than twelve (12) months after the dispute drawing)
(c) The User will receive a refund of the drawing amount if Impos can not substantiate a reason for the drawing.
4.6 It is the User’s responsibility to ensure that:
(a) the nominated account can accept direct debits; and
(b) that on the drawing date there is sufficient cleared funds in the nominated account; and
(c) that the User advises Impos if the nominated account is transferred or closed.
4.7 If any of the drawing is returned or dishonoured by User’s financial institution, Impos will contact the User and a redraw of User’s account will occur within three (3) business days. Any transaction fees payable by Impos in respect of the above will be in addition to the amount payable by the User.
4.8 If the User decides not to have the collection of Customer Support Plan or SaaS Fees setup on Direct Debit, the Fees will be invoiced on a quarterly basis, and incur a $10 ex GST account keeping fee per invoice.
5. Travel & Accommodation
5.1 The User will be on-charged freight, travel, accommodation and reasonable meal expenses associated with the installation and delivery of the Products. Such charges shall be in addition to the Price, unless otherwise stated, and invoiced to the User subsequent to the installation of the Products on provision of appropriate receipts and/or Impos invoice. The User may elect to arrange accommodation for implementation and/or training personally if arranged with Impos in advance.
5.2 Travel time is not included in any Quotation unless otherwise stated. Travel time will be charged at a rate of $120 ex GST per hour in addition to any travel costs, such as flights.
5.3 Parking will be on-charged at cost.
6. Delivery of Products
6.1 Unless otherwise expressly agreed by Impos, delivery of the Products shall be deemed to take place when:
(a) the User takes possession of the Products at Impos’ collection address (including where the nominated carrier of the User takes possession of the Products at Impos’ collection address); or
(b) the Products are delivered to the User’s nominated address (whether the Products are delivered by Impos or Impos’ nominated carrier).
6.2 Impos shall be under no obligation to carry out installation of the Products unless cleared funds are received in satisfaction of the Price at least five (5) days prior to the scheduled installation date. If, however, Impos (in its discretion) does install the Products prior to Impos receiving the Price, Impos may deactivate the Software without notice if the Price is not received within two (2) days after installation occurs (or within any other timeframe notified by Impos at the time of installation).
6.3 Where the Products are delivered to the User, the User will be responsible for all arrangements necessary to take delivery. In the event that the User is unable to take delivery of the Products as arranged then Impos shall be entitled to charge a reasonable fee for redelivery and the cost incurred as a result of the failed delivery.
6.4 Delivery of the Products to a third party nominated by the User is deemed to be delivery to the User for the purposes of these Terms.
6.5 The failure of Impos to deliver shall not entitle either party to treat these Terms as repudiated.
6.6 Impos shall not be liable for any loss or damage whatsoever due to failure by Impos to deliver the Products (or any of them) promptly or at all, where the failure is due to circumstances beyond the control of Impos.
7. Cabling, Internet Connection and Menu Data
7.1 The User acknowledges that:
(a) The installation of both power and CAT5/CAT6 data cabling is not the responsibility of Impos (although Impos will be able to recommend a qualified electrician), and all cabling must be completed before installation commences.
(b) If installation does not occur or is delayed for reasons attributed to the User (including but not limited to unsatisfactory power supply or data cabling or the User’s installation site otherwise not being suitable for any other reason whether attributable to the User or any of its contractors, agents, employees or any other person other than Impos) the User will be liable to Impos for all reasonable costs associated with the delay or cancellation of a schedule installation.
(c) ADSL2+ is the required internet connection, by no means is ‘dial-up’ internet connection viable. It is the responsibility of the User to ensure an appropriate internet connection is available prior to installation.
(d) It shall be the User’s responsibility to complete and return via email an EML to Impos in order to confirm and secure training and installation dates and times. Impos will be under no obligation to confirm any installation or training date until such time as the User has provided Impos with an EML.
8.1 All risk for the Products passes to the User on delivery.
8.2 Where the User expressly requests Impos to leave Products outside Impos’ premises for collection or to deliver the Products to an unattended location then such Products shall be left at the User’s sole risk and it shall be the User’s responsibility to ensure the Products are insured adequately or at all.
8.3 For any period in which Impos retains ownership of the Products the User will maintain at its cost all appropriate insurances against all loss and damage to the Products. If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the User, without prejudice to Impos’ right to payment of the Price, Impos is entitled to receive all insurance proceeds payable to the User for the Products. The production of these Terms by Impos is sufficient evidence of Impos’ rights to receive the insurance proceeds without the need for any person dealing with Impos to make further enquiries.
8.4 Unless specifically included in the Users Customer Support Plan, Impos is not responsible for regular backup of database systems and the Products do not automatically provide for systems backup. Systems backups with off-site information storage may be scheduled at intervals for a Fee by separate written agreement with Impos, although Impos expressly disclaims any responsibility for back-up services provided by third-parties or faults in data back-ups attributable to third party software.
9.1 Impos and the User agree that title to and ownership of the Products shall not pass until the User has paid Impos all amounts owing for the particular Products; and
9.2 It is further agreed that:
(a) where practical the Products shall be kept separate and identifiable until Impos receives payment and all other obligations of the User in respect of the Products are met; and
(b) if the User fails to make a scheduled payment for the Products then Impos or its agent may enter upon and into land and premises owned, occupied or used by the User, or any premises as the invitee of the User, where the Products are situated and take possession of the Products; and
(c) the User is only a bailee of the Products and until such time as Impos has received payment in full for the Products then the User shall hold any proceeds from the sale or disposal of the Products, up to and including the amount the User owes to Impos for the Products, on trust for Impos; and
(d) the User shall not charge the Products in any way nor grant nor otherwise give any interest in the Products while they remain the property of Impos; and
(e) Impos can issue proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products may not have passed to the User.
10. User Options for Product Purchase and Use
10.1 The User may select to purchase Products Outright or subscribe to the Impos’ SaaS option detailed in clause 11.
11. Software as a Service “SaaS”
11.1 The User is required to pay the SaaS Fees for the on-going use of the Software.
11.2 The monthly SaaS Fee is stipulated and is due and payable as per the User’s Quotation. Impos may adjust the SaaS fee from time to time, upon one (1) month’s written notice to the User. The SaaS Fees are inclusive of the Customer Support Plan selected on the User’s Purchase Order.
11.3 The SaaS shall continue for the term stipulated on the Purchase Order. Upon expiration of the term, SaaS will continue on a quarterly basis unless the SaaS is terminated by way of the User providing Impos with written notification. Following receipt of written notice of termination of the SaaS from the User, the SaaS (which includes the Customer Support Plan and the Software licence) shall both terminate at the end of the then current quarterly billing period. If no term is specified on the Purchase Order then the term will continue on a quarterly basis until terminated.
11.4 If the User wishes to terminate the SaaS during the term, the User must pay to Impos the remaining SaaS Fees which would otherwise have been payable to Impos for the balance of the term.
11.5 Where the User defaults in payment of the SaaS Fees (or any part thereof) or any other payment due to Impos at all, Impos may suspend the licence granted under these Terms and deactivate the Software until Fees are received.
11.6 In order to, inter alia, protect the integrity of the Software it is a condition of the licence that all Users pay the SaaS Fees in order to maintain a Customer Support Plan in accordance with the Terms.
11.7 If the User cancels SaaS at any time, the User forfeits their access to Data and any other transaction history.
12.1 The User shall inspect the Products on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify Impos of any alleged defect, shortage in quantity, damage or failure to comply with the description or Quotation. The User shall afford Impos an opportunity to inspect the Products within a reasonable time following delivery if the User believes the Products are defective in any way. If the User fails to comply with these provisions the Products shall be presumed to be free from any defect or damage or shortage in quantity. For defective Products, which Impos has agreed in writing that the User is entitled to reject, Impos’ liability is limited to either (at Impos’ discretion) replacing the Products or repairing the Products.
12.2 Unless otherwise expressly agreed by Impos, Products will not be accepted for return other than in accordance with clause 12.1.
13.1 Returns (other than repair or replacement of defects which shall be made in accordance with clause 12.1) will only be accepted provided that:
(a) Impos has agreed in writing to accept the return of the Products; and
(b) the Products are returned at the User’s own cost within thirty (30) days of the delivery date; and
(c) the Products have been stored in a proper manner and not used; and
(d) the Products are returned in the condition in which they were delivered and with all packaging material, brochures and instructionmaterial in as new condition or
(e) The Products are determined to have a manufacturing fault within the first thirty (30) days of delivery.
13.2 Any return of Products accepted in accordance with clause 13.1 will be made for credit but this may incur a fee of up to twenty percent (20%) of the value of the returned Products plus any freight costs (applied by Impos at its discretion).
13.3 Non-stocklist or superseded items or Products manufactured to the User’s specifications are under no circumstances acceptable for credit or return.
14.1 Subject to statutory provisions, no warranty is given by Impos as to the quality, suitability, fitness, merchantability, uninterrupted use, correspondence with any description or sample and accuracy of the Products for any purpose and any implied warranty, is expressly excluded. Whilst Impos endeavour to ensure that the Products work substantially as per the specifications published by Impos from time to time, Impos does not guarantee that the Products will work on all computer hardware platforms or configurations.
14.2 The User acknowledges that Impos provides the Products on an ‘as is’ basis. Impos shall not be responsible for any loss or damage to the Products arising out of their misuse, or caused by the use of the Products other than in accordance with the intended purpose, however arising.
14.3 The warranty applicable to Products not manufactured by Impos, shall either be the current warranty provided by the manufacturer of the Products or the warranty specified on Impos’ Quotation (if any), and any freight associated with a warranty claim on such products shall be at the User’s own cost. Impos shall not be bound by nor be responsible for any term, condition, representation or warranty given by the manufacturer of the Products.
14.4 In the case of second hand Products, the User acknowledges that the User had full opportunity to inspect the same and that the User accepts the same with all faults and that no warranty is given by Impos as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded to the full extent possible. Impos shall not be responsible for any loss or damage to the Products, or caused by the Products, or any part thereof however arising.
14.5 Subject to availability, Impos may provide access to loan equipment for a nominal daily fee.
15. Integrations & Data
15.1 Impos supports a large range of live integrations that require the use of web-servers, application programming interfaces and maintenance of such integrations to maintain the User’s Data. Impos can only support and provide integrations to Users that are on Premium or Platinum Support.
15.2 Integrations as specified in clause 15.1 may require Data transfers to remote servers and third parties to have read and write access to the User’s Data. Impos will expose User data and allow read and write access where required to support integrations.
15.3 Impos may use Data and any other relevant information for the purpose of Data aggregation to support integrations as specified and with the intent of sale of this Data. Data will be used anonymously and User’s venue details will never be disclosed without the User’s consent (except for the purpose of integratation with third parties where identification of the User is required). The User acknowledges & consents to the collection and use of Data in this manner.
15.4 Impos will not be liable for any Data charges incurred by the User.
16. Licence to Use
16.1 Subject to payment of Price or SaaS Fees described in the Quotation, Purchase Order or any other relevant attachments, Impos grants the User a licence to use the Software (which is used in conjunction with the Products). Impos herein grants the User a personal, non-exclusive, non-transferable, limited licence to use the Software on these Terms.
16.2 The User is entitled to use the Software in respect of the Products and in the manner and in the quantities described on the invoices, Quotation, work authorisation or any other forms as provided by Impos to the User. The User must purchase a separate licence for any Software for each terminal on which the User intends to use the Software.
16.3 The User must not:
(a) use or rely on the Software for any purpose or in any manner for which the Software is not designed or suitable for;
(b) copy, reproduce, translate, adapt, vary merge or modify or create any derivative work based on the Software;
(c) reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the Software, or assist another party to do the same; or
(d) sell, market, network, transfer, lease, licence, sub-licence, rent, lend or otherwise dispose of or distribute the Software in any way whatsoever.
17. Customer Support Plans
17.1 For Outright Users:
(a) The User must, for a period of twelve (12) months commencing on the date of installation, subscribe to a Customer Support Plan. After this initial twelve (12) month period the User may cancel its Customer Support Plan by notifying Impos in writing. Fees for the Customer Support Plan options are set out in the Quotation.
(b) The “Customer Support Plan” Fees shall be billed in advance on a monthly or quarterly basis and calculated as per the weekly Quotation.
(c) If the User does not cancel the Customer Support Plan in writing prior to the expiration of the twelve (12) month term, the Customer Support Plan will continue until otherwise notified to be terminated. Impos may adjust the Fee from time to time upon one (1) month’s written notice to the User.
17.2 For SaaS Users:
(a) The Saas User must subscribe to a Customer Support Plan during the term of the SaaS.
(b) The Customer Support Plan Fee for SaaS Users is included in the monthly SaaS Fees as per the Quotation.
17.3 In the event that the User’s Customer Support Plan has lapsed (due to non-payment) or been cancelled and support is required (either on-site or via telephone/internet), the User shall be charged, and agrees to pay Impos’ Fees outlined in the Schedule.
17.4 The Customer Support Plan’s available to the User are “Basic Support Plan”, “Premium Support Plan” and Platinum Plus Support Plan”. Services included in the Support Fees for each of the Customer Support Plan options for both Outright and SaaS Users are detailed in the Schedule.
17.5 Should a User cancel their Customer Support Plan and choose to operate the Software under the licence granted in clause 16.1 without support then Fees will be incurred as per the Schedule for any support required.
17.6 The User’s Customer Support Plan does not include support for third party Hardware or Software, which remains the responsibility of the relevant third party.
17.7 As per clause 7.1(c), it is the responsibility of the User to ensure an appropriate internet connection is available in order for updates to the Software and to provide online customer support. Impos will be under no obligation to provide technical support for problems which relate to the User’s internet connection, or any failure thereof.
17.8 Technical support is included for those that have received Software training from Impos. Under no circumstance is technical support to be used for the purposes of re-training of new management or new staff. Such training will be provided at Impos’ current hourly rate including any call-out Fees or travel costs.
17.9 Should the User’s Customer Support Plan lapse and the User wishes to re-subscribe, the User shall be required to pay fifty percent (50%) of the total User’s support Fees which would otherwise have been payable for the relevant Customer Support Plan for the period between termination of the Customer Support Plan and re-subscription.
18. Activation & Verification
18.1 The Software contains technology to protect it from illegal copying, and as a result the User may be required to:
(a) have the Software reactivated periodically during the term of the license by verifying (either via phone or internet connection) your license details or any other details relating to the Software as may be required by Impos in order to confirm you are using the Software in accordance with the license terms;
(b) have the Software reactivated by Impos if you wish to re-install the Software (for example, if you would like to install the Software on a new computer).
18.2 At Impos’ sole discretion, a reactivation charge of one hundred and twenty dollars ($120.00) shall apply for each license in respect of Impos’ terminal Software or Impos’ ImPDA Software if:
(a) the terminal or ImPDA Software is being re-installed on a computer other than the computer on which it was previously installed;
(b) Software has been deleted accidentally by the User, either in part or in full;
(c) the User allows the PDA to become completely flat and as a consequence loose the ImPDA Software; or
(d) the licence has been suspended due to outstanding monies owed to Impos.
18.3 Notwithstanding the above, no reactivation charges will apply if:
(a) reactivation is required by Impos to verify proper use of the Software under the Licence to Use; and
(b) the User has up-to-date paid in full customer support with no overdue monies owing to Impos.
19. Intellectual Property
19.1 Despite any reference to ‘purchase’ or ‘sale’ in these Terms or in any Purchase Order, Quotation or any other document relating to the supply of the Products, the copyright and intellectual property in the Software and, where relevant, and associated documentation (including, but not limited to, designs or specifications) shall remain vested in Impos, and shall only be used by the User in accordance with clause 16.
19.2 The User warrants that no designs requested by it (including for example, EML designs or one-off Product designs specifically requested by the User) will cause Impos to infringe any patent, registered design or trademark in the execution of the User’s Purchase Order and the User agrees to indemnify Impos against any action taken by a third party against Impos in respect of any such infringement.
19.3 Where Impos has supplied or designed Products for the User, then the User undertakes to acknowledge Impos’ intellectual property in those Products in the event that images of the Products are utilised in advertising or marketing material by the User.
19.4 The User hereby authorises Impos to utilise images of any Products designed or supplied by Impos in advertising, marketing, or competition material by Impos.
20. Default & Consequences of Default
20.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at Impos’ sole discretion such interest shall compound monthly at such a rate).
20.2 In the event that the User’s payment is dishonoured for any reason the User shall be liable for any dishonour or bank administration fees or charges incurred by Impos.
20.3 If the User defaults in payment of any Fees when due, the User shall indemnify Impos from and against all costs and disbursements incurred by Impos in pursuing the debt including legal costs on a solicitor and own client basis and Impos’ collection agency costs.
20.4 Notwithstanding any other clause in the Agreement constituted by the User’s acceptance of these Terms, Impos reserves the right (at its sole discretion) to deactivate the Software and refuse to supply Products and/or Services (including support under the User’s Customer Support Plan) to the User if any account remains overdue after fourteen (14) days from the date of its issue.
20.5 Without prejudice to any other remedies Impos may have, if at any time the User is in breach of any obligation (including those relating to Price), Impos may suspend or terminate the supply of Products to the User and any of its other obligations under these Terms. Impos will not be liable to the User for any loss or damage the User suffers because Impos has exercised its rights under this clause.
20.6 If any account remains overdue after thirty (30) days from the date of its issue then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
20.7 Without prejudice to Impos’ other remedies at law Impos shall be entitled to cancel all or any part of any order of the User which remains unfulfilled and all amounts owing to Impos shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Impos becomes overdue, or in Impos’ opinion the User will be unable to meet its payments as they fall due; or
(b) the User becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the User or any asset of the User.
21.1 Impos may cancel any Agreement to which these Terms apply or cancel delivery of Products at any time before the Products are delivered by giving written notice to the User. On giving such notice Impos shall repay to the User any sums paid in respect of the Price. Impos shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.2 In the event that the User cancels delivery of Products the User shall be liable for any loss incurred by Impos (including, but not limited to, any loss of profits) up to the time of cancellation.
21.3 Cancellation of orders for Products made to the User’s specifications or non-stocklist items will not be accepted, once the order has been placed.
22. Privacy Act 1988
22.1 The User and/or the Guarantor/s agree for Impos to obtain from a credit reporting agency a credit report containing personal credit information about the User and Guarantor/s in relation to credit provided by Impos.
22.2 The User and/or the Guarantor/s agree that Impos may exchange information about the User and the Guarantor/s with those credit providers either named as trade referees by the User or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application or order made by the User; and/or
(b) to notify other credit providers of a default by the User; and/or
(c) to exchange information with other credit providers as to the status of any credit account maintained by the User, where the User is in default with other credit providers; and/or
(d) to assess the credit worthiness of the User and/or Guarantor/s.
22.3 The User consents to Impos being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
22.4 The User agrees that personal credit information provided may be used and retained by Impos for the following purposes and for other purposes as shall be agreed between the User and Impos or allowed by law from time to time:
(a) provision of Products; and/or
(b) marketing of Products by Impos, its agents or distributors in relation to the Products; and/or
(c) analysing, verifying and/or checking the User’s credit, payment and/or status in relation to provision of Products; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the User; and/or
(e) enabling the daily operation of the User’s account and/or the collection of amounts outstanding in the User’s account in relation to the Products.
22.5 Impos may give information about the User to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the User; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the User.
23. Impos’ unpaid Seller’s Rights
23.1 Where the User has left any Product with Impos for repair, modification, exchange or for Impos to perform any other Service in relation to the Product and Impos has not received or been tendered the whole of the Price for the Service, or the payment has been dishonoured, Impos shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Impos is in possession of the item;
(c) a right to sell the item.
23.2 The lien of Impos shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
24.1 If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 These Terms and any Agreement to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.
24.3 Impos shall be under no liability whatsoever to the User for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the User arising out of a breach by Impos of these Terms.
24.4 In the event of any breach of the Agreement by Impos the remedies of the User shall be limited to damages which under no circumstances shall exceed the Price of the Products.
24.5 The User shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the User by Impos nor to withhold payment of any invoice because part of that invoice is in dispute.
24.6 Impos may license or sub-contract all or any part of its rights and obligations without the User’s consent.
24.7 The User agrees that Impos may review these Terms at any time. If, following any such review, there is to be any change to these Terms, then that change will take effect from the date on which Impos notifies the User of such change.
24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
24.9 The failure by Impos to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect Impos’ right to subsequently enforce that provision.
24.10 Impos may assign this Agreement or any right or obligation of this Agreement, by operation of law or otherwise, without the consent of the User.
25. Personal Property Securities Act (“PPSA”)
25.1 The User acknowledges and agrees that the agreement constituted by the User’s acceptance of these Terms constitutes a security agreement pursuant to the PPSA and that a security interest exists in all Products (and any proceeds arising in respect of a deal in Products) provided by Impos to the User prior to the date of this agreement (if any) and following the date of this agreement.
25.2 The User consents to Impos affecting and maintaining registration on the register (in a manner Impos considers appropriate) in relation to the security interest in the Products constituted or contemplated by this security agreement and the proceeds arising in respect of any dealing in the Products including but not limited to any intellectual property in the Products (if any). Impos may at any time before or after the delivery or supply of Products to the User register a financing statement or financing change statement in respect of a security interest (including any purchase money security interest).
25.3 The User (for and on behalf of itself and its successors, administrators or assigns) undertakes:
(a) to do anything (including executing any new document or providing any information or assistance) that is required by Impos: (A) to facilitate the registration and continuing maintenance of any registration of a security interest under the PPSA in respect of the Products (and any proceeds arising in respect of a dealing in the Products) including ensuring that the security interest is and continues as a perfected security interest and has priority over all other security interests in the Products (if any) held by any other party; (B) to register a financing statement or financing change statement; and (C) to ensure that its security position, and rights and obligations, are not adversely affected;
(b) not to create any security interest or lien over any of the Products (other than security interests granted to Impos);
(c) not to give Impos a written demand or allow any other person to give Impos a written demand requiring Impos to register a financing change statement under the PPSA relating to Impos’ security interest under the PPSA in respect of the Products and any proceeds arising in respect of a dealing in the Products.
(d) not to sell, lease, dispose of or otherwise deal with the Products or give possession of the Products to another person, expect with the express written consent of Impos;
(e) not to permit any of the Products to become an accession to or commingled with any asset that its not part of the Products; and
(f) to notify Impos of any changes to its details (as set out in the quotation) within five (5) days of such change.
25.4 The User agrees not to disclose information of the kind referred to in s.275(1) of the PPSA to an interested person, or any other person required by an interest person except in circumstances required by sub-section 275(7)(b), 275(7)(d) and 275(7)(e) of the PPSA. The User waives any right it has, or may but for this clause otherwise have had, under s.275(7)(c) of the PPSA to authorise the disclosure of the above information and acknowledges that this clauses amounts to a confidentiality agreement for the purposes of s.275 of the PPSA.
25.5 The User waives its right to receive each notice which it is permitted to waive under s.157(3) of the PPSA.
25.6 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arsing under or in connection with this agreement and:
(a) section 115(1) of the PPSA allows for the contracting out of provisions of the PPSA, then the User (to the maximum extent permitted by law) agrees that the following provisions of the PPSA will not apply and the User will have no rights under them: (A) s.95 (to the extent that it requires secured party to give notices to the grantor); (B) s.96; (C) s.118 (to the extent that it allows a secured party to give notices to the grantor); (D) s.121(4); (E) s.123(2); (F) s.125; (G) s 129(2) (H) s.130 (to the extent that it requires the secured party to give notice to the grantor); (I) s.132(3)(d); (J) s.132(4); (K) s.135; (L) s.142; and (M) s.143; and
(b) section 155(7) of the PPSA allows for the contacting out of provisions of the PPSA, then the User (to the maximum extent permitted by the law) agrees that the following provisions of the PPSA will not apply and the User will have no rights under them: (A) s.127; (B) s.129(2) and (3); (C) s.130(1); (D) s.132; (E) s.134(2); (F) s.135; (G) s.136(3), (4) and (5); and (H) s.137.
25.7 The User agrees to promptly reimburse Impos for all costs and any expenses incurred or payable by Impos in relation to registering, maintaining or releasing of any registration on the register in relation to any security interest contemplated or constituted by this agreement.
25.8 The User irrevocably grants Impos the right to enter upon the User’s property or premises, without notice and without being in any way liable to the User or any third party, if Impos has cause to exercise any of Impos’ rights under s.123 of the PPSA, s.128 of the PPSA or both, and the User shall indemnify Impos from any claims made by any third party as a result of such exercise.
25.9 Clause 25 applies to the extent that IMPOS’ interest in the Products comprises a security interest. Nothing in clause 25 is limited by any other provisions of the renal agreement or any other agreement between the parties.