Descriptive Matter, etc

1. The descriptions, illustrations and performances contained in any Descriptive Matter do not form part of the Agreement for sale or supply of Goods and Services or of the description applied to any Goods and Services. The Customer acknowledges that it has not relied upon any descriptions, illustrations and performances contained in any Descriptive Matter as an inducement to entering into any Agreement or other contract for sale or supply with Data2Power.  The Customer must determine whether the Goods and Services requested by the Customer and supplied by Data2Power are adequate for the purpose intended by the Customer. Data2Power is not capable of determining all of the Customer’s objectives in relation to the Goods and Services and relies on the Customer to satisfy itself as to whether the Goods and Services are adequate to achieve the Customer’s purpose and objectives.

Performance

2. Any performance standards, figures or representations as to quality given by Data2Power are estimates only. Data2Power is under no liability for damages for failure of any Goods and Services to attain such quality standards, figures or quality unless specifically warranted in writing. Any such warranties are subject to recognised tolerances applicable to such standards, figures or quality.

Delivery

3. Data2Power will not be liable for any loss, damage or delay occasioned to the Customer, its customers or any other person, arising from:
   • late Delivery or non-Delivery, or late utilisation of any Goods and Services; or
   • any actions or Obligations conducted or incurred by the Customer in reliance on any expected Delivery date.
4. The Customer is responsible for making arrangements to receive Goods and Services Delivered in accordance with any Order failing which Data2Power may, without Obligation, Deliver in any other manner it considers reasonable in the circumstances.
5. If the Customer fails to accept Delivery of Goods and Services, the Customer will be liable for loss of or damage to the Goods and Services and for any costs or damages incurred by Data2Power on account of such failure to accept Delivery.
6. The Customer waives any claim for shortage of any Goods Delivered if a claim in respect of short Delivery has not been lodged with Data2Power within 48 hours from the date and time of Delivery.
7. Should the Customer fail to provide sufficient instructions to enable Delivery of Goods to the Customer, Data2Power may, without Obligation, arrange for suitable storage and insurance until such Goods are Dispatched. Charges incurred for storage, insurance, transport and other incidental costs may be on-charged by Data2Power to the Customer.
8. Delivery of Goods and Services to a third party nominated by the Customer is deemed to be Delivery to the Customer.
9. Data2Power may deliver Goods and Services in separate instalments. Each separate instalment may be invoiced and paid in accordance with these Terms and Conditions.

Risk

10. The risk in, and all attached liability for damage to, Goods passes to the Customer at the point of Dispatch of the Goods even if Data2Power Delivers Goods itself or Data2Power’s premises are the intended Delivery location. The Customer must make its own arrangements for insurance of the Goods on or before Dispatch.
11. If any Goods are damaged or destroyed following Dispatch but prior to ownership passing to the Customer, Data2Power is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions by Data2Power will be sufficient evidence of Data2Power’s Right to receive the insurance proceeds without the need for any person dealing with Data2Power to make further enquiries.

Loss or damage in transit

12. Data2Power is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not Data2Power is legally responsible for the person who caused or contributed to that loss or damage).
13. Data2Power will endeavour to provide the Customer with such assistance as may be reasonable to press claims on carriers as long as the Customer:
    • has notified Data2Power and the carriers in writing immediately after loss or damage is discovered on receipt of Goods; and
    • lodges a claim for compensation upon the carrier within three (3) days of the date of receipt of Goods.

Defects, Warranties and Returns

14. The Customer must inspect Goods and Services on Delivery and must immediately upon Delivery notify Data2Power in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description, Order or Quote or other grounds for rejection of the Goods and Services. Upon such notification the Customer must:
    • specify all grounds relied upon by it in its rejection of the Goods and Services;
    • provide good quality evidence of the grounds for its rejection of the Goods and Services; and
    • allow Data2Power the opportunity to inspect the Goods and Services.
15. Under applicable State, Territory and Commonwealth law (including, without limitation, the ACL), certain Non-Excludable Conditions may be implied into these Terms and Conditions. Nothing in these Terms and Conditions purports to modify or exclude the Non-Excludable Conditions.
16. Except as expressly set out in these Terms and Conditions or in respect of the Non-Excluded Conditions, Data2Power makes no warranties or other representations under these Terms and Conditions or the Agreement generally including, without limitation, as to the quality, merchantability or suitability of any Goods and Services. Data2Power’s liability in respect of any such warranties is limited to the fullest extent permitted by law.
17. If the Customer is a consumer within the meaning of the ACL, Data2Power’s liability in relation to Goods and Services which are not used for personal, domestic or household purposes is limited to:
    • either replacing or repairing Goods or reimbursing the Customer for the repair or replacement of the Goods (at the election of Data2Power);
    • either re-supplying Services or reimbursing the Customer for paying someone else to supply the Services (at the election of Data2Power);

or is otherwise limited to the extent permitted by section 64A of Schedule 2 of the ACL or to similar remedies under any applicable state or territory fair trading legislation.

18. If the Customer is not a consumer within the meaning of the ACL, Data2Power’s liability for any defect or damage in any Goods and Services is:
    • limited to the value of any express warranty provided to the Customer by Data2Power, at Data2Power’s sole discretion;
    • limited to the extent of the benefit of any warranty to which Data2Power is entitled; or
    • otherwise negated absolutely.
19. Subject to these Terms and Conditions, returns will only be accepted provided that:
    • the Customer has complied with the provisions of clause 30;
    • Data2Power has agreed that the Goods and Services are defective;
    • the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
    • the Goods are returned in as close a condition to that in which they were Delivered as is possible.
20. Despite clauses 30 to 35 but subject to the ACL, Data2Power will not be liable for any defect or damage which may be caused or partly caused by or may arise as a result of:
    • the Customer failing to properly maintain or store any Goods;
    • the Customer using Goods for any purpose other than that for which they were obviously suited;
    • the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a prudent operator or user;
    • any failure by the Customer to follow any instructions or guidelines provided by Data2Power; or
    • fair wear and tear, any accident, or act of God.
21. Data2Power may in its absolute discretion accept non-defective Goods for return in which case Data2Power may require the Customer to pay handling fees not exceeding twenty-five percent (25%) of the invoiced value of the returned Goods, plus any freight costs.
22. Despite anything contained in these Terms and Conditions, if Data2Power is required by a law to accept a return then Data2Power will only accept a return on, and to the extent only, of the conditions imposed by that law.
23. Except as provided in these Terms and Conditions and to the maximum extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of Goods and Services for any purpose or as to design, application of Goods and Services, materials or workmanship or otherwise are expressly excluded.
24. Data2Power is not liable for any loss or damage, loss of income, loss of profits, loss of markets, loss of reputation, loss of buyers, loss of use, loss of opportunity, loss of business, loss of reputation or goodwill, loss of value or use of intellectual property or other proprietary Rights even if Data2Power had knowledge that such loss or damage might arise or for any other indirect, incidental, special or consequential loss or damage howsoever arising out of the manufacture, sale or supply of the Goods and Services or out of the Customer’s relationship with Data2Power connected to the Agreement including, without limitation, Data2Power’s breach of contract, negligence, wilful act or omission or other default including to the extent that such conduct or default is outside the “four corners” of the Agreement, or deviates from it or defeats its main object.