These General Terms and Conditions shall apply between the Supplier - Hyper Scalers Pty Ltd and its subsidiaries (with a principal address) at 10/65 Tennant street Fyshwick, 2609 A) and the Partner ___________________________with Principal address at _________________________________ and shall apply to all bids, offers, contracts and statements of work in the broader sense of the word (hereinafter: a contract).
1. Formation of Contract
1.1 The Customer expressly represents that it accepts these General Terms and conditions, unless otherwise agreed in writing.
1.2 A contract shall be deemed to have been concluded upon acceptance of the offer by the Customer in writing or, in the absence of any offer, in the event that the Customer gives Hyper Scalers Pty Ltd an order and the latter accepts said order.
1.3 In the event that the Customer cancels the order completely or in part after a contract has
been formed, Hyper Scalers Pty Ltd shall be entitled to charge the Customer all the costs the former has incurred and/or will incur in connection with the order. After payment of the cancellation costs by the Customer, Hyper Scalers Pty shall surrender to the Customer all the work-in-progress in furtherance of the order that was developed during the period prior to the cancellation, all of this subject to the other provisions of these Terms and Conditions.
2. Prices/Terms and Conditions of Payment
2.1 The prices and rates shall be inclusive of the work to be carried out by Hyper Scalers Pty Ltd as described in the offer, bid or contract. In the event the Customer has a request to change and/or add to the specifications for the work to be produced and delivered by Hyper Scalers Pty, it shall notify us accordingly. Hyper Scalers Pty Ltd shall then issue the Customer with a price quotation for any additional work to be performed as a result of such change(s) and/or addition(s). Hyper Scalers Pty shall not carry out any additional work without first receiving a written order thereto from the Customer. Hyper Scalers Pty shall invoice the Customer for this additional work. In the event of a request for change/additional work, the most recent specifications will always prevail over older specifications.
2.2 Hyper Scalers Pty shall calculate the applicable prices plus an additional amount for GST. Unless special terms are agreed, the prices should be understood to be prices ex works, with no deduction or discount being granted for immediate payment. All invoices shall be paid by the Customer in accordance with the payment conditions stated on the invoice. In the absence of specific conditions, the Customer must make payment no later than thirty days after the invoice date.
2.3 If payment deadlines are not met, this will automatically give rise to statutory consequences of default, without any special reminder being required. In particular, we reserve the right to charge interest at the applicable rate charged by our bank. Furthermore, the entire balance shall become due and payable immediately, irrespective of any payment targets.
2.4 If payment is not made in any relevant payment period, Hyper Scalers Pty is entitled to suspend its obligations pursuant to the contract and any other current contracts until full payment has been made, without prejudice to our right to damages and without any obligation to compensate the Customer for any loss.
3. Delivery dates
3.1 We will endeavour to adhere to stipulated delivery deadlines. However, our contractual obligations are subject to our supplier delivering the correct products to us on time.
3.2 When goods are transported, the risk (of accidental loss, destruction or deterioration) (the "Risk") shall pass to the Customer as soon as we have dispatched the goods to the carrier chosen by us.
4. Warranties in Respect of Material Defects and Notification of Defects
4.1 Hyper Scalers Pty provides a 38 Month RMA period as standard for any defects in the gear given no modifications made by the customer. Extended warranties will be considered upon request (Up to 5 years).
4.2 Claims on the basis of defects as to quality ("material defects") shall become statute-barred 2 months after delivery of our goods to our Customer. Our consent must be obtained before any goods are returned.
4.3 We will, at our election and subject to receiving notification of the defect within the required time, repair the goods or deliver substitute goods. We must always be given the opportunity to render subsequent performance within a reasonable time.
4.4 If subsequent performance cannot be rendered, the Customer may – notwithstanding any claims for compensatory damages – rescind the agreement or reduce the payment with prior agreement with Hyper Scalers.
4.5 After the Risk has passed and if a result of incorrect or careless treatment, overuse, unsuitable operating resources, defective building work, unsuitable building foundations or special external influences that are not requirements under the contract or if the Customer or a third party improperly carries out maintenance work or modifications, then no claims based on defects may be made in respect of such work or modifications or the resulting consequences.
5. Industrial Property Rights and Copyright
5.1 Hyper Scalers Pty will grant the Customer the non-exclusive right to use the work delivered by us to the Customer for all time for the purpose as described in the relevant offer, bid or contract.
5.2 Unless otherwise agreed, we have an obligation to deliver the goods free from the industrial property rights and copyrights of third parties (hereinafter referred to as "Proprietary Rights"). In the event that a third party makes legitimate claims against the Customer for infringement of Proprietary Rights based on the goods delivered by the supplier and used in accordance with the contract, we shall be liable to the Customer as follows:
(a) At our election and at our own expense, we will either secure a licence for the goods concerned, modify them so that the Proprietary Right is not infringed, or exchange them. If we are unable to do any of the above on reasonable terms, then the Customer shall be entitled to the statutory rights of rescission and reduction of the contract price. The Customer may not demand compensation for expenses incurred in vain.
(b) Our obligations as described above shall exist only on the condition that the Customer notifies us in writing without delay of the claims asserted by the third party. If the Customer discontinues using the delivered goods in order to mitigate loss or for any other good reason, then the Customer shall bring to the attention of the third party the fact that discontinuing use of the goods in no way constitutes an admission of an infringement of Proprietary Rights
5.3 Claims on the part of the Customer are excluded if the Customer is responsible for the infringement of Proprietary Rights.
5.4 Claims on the part of the Customer shall be further excluded if the infringement of Proprietary Rights is a result of the Customer modifying the goods or using them together with goods not delivered by us.
5.5 Hyper Scalers Pty reserves the right to use all or any part of the goods developed for the
Customer for promotional, acquisition and/or demonstration purposes.
5.7 Documents supplied by us may not be copied or made available to third parties, or used for any purpose other than the agreed purpose.
5.8 Reservation of Title Hyper Scalers Pty shall retain title to the goods until all of our claims, including claims arising in the future, are fully paid. The Customer may process and sell the goods in accordance with the following conditions:
(a) If the goods are further processed or remodelled by the Customer, then we shall be deemed the manufacturer and shall acquire title to the intermediate or final products. The processor shall be merely the custodian.
(b) If the goods are mixed or processed with other property not belonging to us, then we shall acquire a co-ownership interest in the new item proportionate to the value of the goods.
(c) The goods may be sold only in the normal and ordinary course of business and only if claims deriving from their resale are not assigned to third parties beforehand. The Customer's claims deriving from resale of the goods shall, upon execution of the purchase agreement between us and the Customer, be deemed assigned to us to the extent that our goods are mixed or inter-processed with other property. The Customer may collect on the claims itself unless and until it receives instructions (to the contrary) from us. The Customer must immediately transfer the amounts collected by it to the extent that our claims are due.
5.9 In the case of non-domestic sales, the Customer shall cooperate in all actions we may wish to take in order to protect our ownership interest or alternative right in the goods.
6. Judicial Forum
6.1 The judicial forum for both parties, including for bill of exchange matters, is Hyper Scalers Pty’s principal place of business (registered office). If Hyper Scalers Pty becomes the plaintiff in litigation, then Hyper Scalers Pty will also be entitled to bring an action in the jurisdiction of the Customer's principal place of business (registered office)
Hyperscalers Authorised Representative
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Partner _______________________Authorised Representative
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