Terms and Conditions of Sale
Please Read These Terms and Conditions Carefully
THESE TERMS AND CONDITIONS ("AGREEMENT") CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND BLACK BOX NETWORK SERVICES AUSTRALIA PTY LTD ("BLACK BOX"). YOU ACCEPT THIS AGREEMENT BY CLICKING "I ACCEPT" DURING THE REGISTRATION PROCESS AND/OR CHECK OUT PROCESS.
THIS AGREEMENT SHALL GOVERN YOUR PURCHASES OF PRODUCTS AND/OR SERVICES FROM BLACK BOX EITHER THROUGH BLACK BOX'S WEBSITE (THIS "SITE") OR BY YOUR SUBMISSION OF AN ORDER VIA PHONE, FACSIMILE, EDI, MAIL OR OTHER MEANS, UNLESS YOU AND BLACK BOX HAVE
ENTERED INTO A SEPARATE WRITTEN AGREEMENT, IN WHICH CASE SUCH SEPARATE WRITTEN AGREEMENT WILL GOVERN.
YOU CONSENT TO
RECEIVING ELECTRONIC RECORDS, WHICH MAY BE PROVIDED VIA A WEB BROWSER OR E-MAIL APPLICATION CONNECTED TO THE INTERNET. YOU MAY WITHDRAW CONSENT TO RECEIVING ELECTRONIC RECORDS OR HAVE THE RECORD PROVIDED IN NON-ELECTRONIC FORM BY NOTIFYING BLACK
BOX VIA firstname.lastname@example.org OR VIA OVERNIGHT DELIVERY OR REGULAR MAIL TO Warehouse 2, 22A Kalimna Ave, Mulgrave, Victoria 3170, ATTN.: Customer Service/Contact Center.
YOU AGREE AND REPRESENT THAT YOU ARE BUYING PRODUCTS AND SERVICES ONLY FOR YOUR INTERNAL USE AND NOT FOR RESALE. BLACK BOX HAS SEPARATE TERMS AND CONDITIONS OF SALE FOR PERSONS OR ENTITIES PURCHASING PRODUCTS TO RESELL.
1. You may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order are expressly rejected and will be null and void. Black Box's failure to specifically object to any such
additional or different terms and conditions shall not constitute a waiver or acceptance of such additional terms and conditions. You agree that this Agreement and the terms and conditions set forth in Black Box's order acknowledgment will control.
No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of this Agreement.
2. The prices and other information
shown on this Site do not represent unconditional offers to sell and are subject to change by Black Box at any time without notice to you. All orders are subject to product availability. Black Box reserves the right to cancel any order in whole
or in part. Black Box cannot guarantee that it will be able to fulfill your orders.
3. Payment terms are net thirty (30) days from the date of Black Box's invoice. In the event that Black Box, in its sole discretion, deems your financial condition unsatisfactory, Black Box may require full or partial payment in advance. Upon your failure
to submit full or partial payment, Black Box may cancel or delay any or all orders hereunder. Amounts past due are subject to a service charge equal to the lesser of 1.5% per month or the maximum rate permitted by law.
4. Any consumption, excise, sales, value added or other tax which may be applicable to the transactions conducted under this Agreement shall be invoiced to you as a separate item and shall be paid by you unless you furnish Black Box with a valid exemption
5. Black Box may revise and discontinue products or services at any time without notice to you. Black Box reserves the right to substitute the latest design or manufactured equivalent products where interchangeability does not materially affect form,
fit or function.
6. Requested changes to orders are subject to Black Box's approval and acceptance in writing. You shall pay Black Box the then-current standard purchase price and/or fees for such accepted changes and for all reasonable
increased costs and expenses incurred as a result of such accepted changes.
7.Cancellation of any order is subject to Black Box's receipt of your written notice of such cancellation before (i) any product is shipped or (ii) the services are scheduled to commence. In the event of any such whole or partial cancellation of any order,
you shall pay to Black Box the reasonable costs and expenses incurred by Black Box prior to Black Box's receipt of the cancellation notice. Orders for non-standard, non-stock items (products), special or custom products and/or services are final and
8. Products shall be shipped F.O.B. Black Box's facility. Title to, and risk of loss or damage to, the products shall pass to you upon Black Box's delivery of the products to a carrier for shipment. Title to software will remain with the applicable licensor(s).
Black Box's prices do not include shipping and handling charges. Black Box reserves the right to use its own discretion in the manner and routing of shipments. You acknowledge that Black Box may receive volume discounts from its carriers and that
such discounts will not be credited or refunded to you. Black Box shall be permitted to deliver products in separate lots.
9. Subject to sections 13 and 15, you may return products in accordance with Black Box's standard Return Policy in effect on the date of the return. If you fail to follow Black Box's Return Policy, Black Box is not responsible whatsoever for any returned
product that is lost, damaged, modified or otherwise processed for disposal or resale. You must contact Black Box before attempting to return a product in order to obtain a Return Material Authorization ("RMA") number to include with the return. Black
Box shall not be required to accept any return without an authorized RMA number. You must return the product in its original or equivalent packaging. You are responsible for all risk of loss and shipping and handling fees for returned products.Black
Box may, in its sole discretion, charge additional restocking fees and/or issue credit for partial returns less than invoice or individual component prices due to bundled or promotional pricing.
10. The repair of your products may result in the loss of any user-generated data. Please ensure that you have made a copy of any data saved on your products. Goods presented for repair may be replaced by refurbished goods of the same type rather than
being repaired. Refurbished parts may be used to repair the goods.
11. All delivery/performance dates indicated on this Site or on Black Box's documents are approximate and are based upon the prompt receipt of all necessary information from you regarding products and/or services ordered. Black Box will use commercially
reasonable efforts to meet the indicated delivery/performance dates but shall not be liable for any breach of contract or held responsible for any costs or expenses incurred by you as a result of Black Box's failure to do so. In the event of any delivery
delay caused by you, Black Box will store and handle all products ordered at your risk and will invoice you for the purchase price plus reasonable storage, insurance and handling charges incurred on or after the date on which the products are ready
for delivery. You hereby grant to Black Box and its
subcontractors authority to enter the property upon which services are to be performed. If existing conditions attributable to you increase Black Box's costs or expenses for providing services, you shall pay Black Box for all increased costs and
expenses incurred as a result of such existing conditions.
12. Until such time as Black Box is fully paid for products shipped, Black Box reserves, and you hereby grant to Black Box, a purchase money security interest in the products listed in the order confirmation in the amount of their purchase price plus
all attorneys' fees and costs of collection. A copy of the order confirmation may be filed on Black Box's behalf with appropriate authoritiesat any time as a financing statement in order to perfect Black Box's security interest.
You will provide Black Box with reasonable assistance in perfecting its security interest. Black Box shall have all rights and remedies of a secured party under the applicable provisions of the Personal Property and Securities Act 2009 (Cth).
13. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also
entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
14. Subject to sections 13 and 15, Black Box warrants that products sold by Black Box hereunder shall be free from defects in material and workmanship for a period commencing on the date of shipment and continuing until expiration of Black Box's applicable
standard warranty period for such product as set forth in product description on the Site. Black Box warrants that services performed by Black Box hereunder shall be performed in a professional and workmanlike manner and shall be free from defects
in material and workmanship for ninety (90) days from completion. If products or services fail to meet their respective warranties hereunder, Black Box will, at its sole option, either: (i) refund the amount received by Black Box for defective products
or services, (ii) repair or replace any defective product free of charge or (iii) re-perform services of the type originally performed free of charge. The foregoing is contingent upon (i) you returning the defective product to Black Box (F.O.B. Black
Box's facility) or (ii) Black Box receiving written notice of defective services, prior to the expiration of the applicable warranty period. The warranty set forth herein extends solely to you and does not extend to any product or service that has
been misused, modified, repaired by anyone other than Black Box, improperly installed, or otherwise abused. Any and all warranties granted hereunder shall be void if any portion of the purchase price has not been paid, in which case no warranty shall
apply. This clause and its benefits are in addition to, and do not affect, other statutory rights and remedies which are available to you under the Australian Consumer Law.
15. Certain legislation including the Competition and Consumer Act 2010 (Cth), may imply warranties, conditions or guarantees or impose obligations or remedies which cannot be excluded, restricted or modified except to a limited extent. To the extent
that such legislation applies, this Agreement must be read subject to those statutory provisions and nothing in this Agreement is intended to alter or restrict the operation of such provisions. If the statutory provisions outlined above apply,
notwithstanding any other provision of this Agreement, to the extent that we are entitled to do so, we limit our liability in respect of any claim under those provisions to (at our option): (i) in the case of services, the supply of the services again
or the payment of the cost of having services supplied again; and (ii) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of such goods, the payment of the cost of replacing the goods or acquiring equivalent
goods, or the payment of the cost of having the goods repaired.
16. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT TO SECTIONS 13 AND 15 , BLACK BOX MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED. ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ANY WARRANTY OF NONINFRINGEMENT
OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OF TRADE OR TRADE PRACTICE ARE HEREBY EXPRESSLY DISCLAIMED.
17. Black Box will defend, at its expense, any action brought against you to the extent that it is based on a claim that your use of any product purchased under this Agreement infringes any patent, copyright, trademark, trade secret or other intellectual
property right of a third party, and Black Box will indemnify you from any costs, damages and fees (including reasonable attorneys' fees) finally awarded against you in such action which are attributable to such claim. You agree to notify Black Box
promptly in writing of any claim, to permit Black Box to have sole control of the defense, compromise or settlement of the claim and to provide all available information and assistance regarding such claim. Black Box shall not be liable for any costs
or fees incurred by you on such action or claim unless authorized in writing by Black Box. Should any product purchased hereunder become, or in Black Box's opinion be likely to become, the subject of a claim for infringement of any such third-party
intellectual property right, Black Box may (i) procure for you, at no cost to you, the right for you to continue to use the product, (ii) replace or modify the product, at no cost to you, to make such product non-infringing, provided that the replacement
or modified product provides substantially similar functionality and performance or (iii) if neither (i) or (ii) are, in the sole discretion of Black Box, commercially practicable, terminate your right to use such product, and grant you a credit against
the purchase price of such previously purchased product as depreciated on a straight line five (5) year basis from the date of shipment of the product to you. Black Box shall have no liability for any claim based upon: (i) the combination, operation
or use of any such product with equipment, devices or software not supplied or specified by Black Box, (ii) the alteration or modification of any such product that was not made or approved by Black Box, (iii) your failure to use the most current version
of such product or (iv) the use of such product other than in accordance with the applicable specifications, documentation or this Agreement. Subject to sections 13 and 15, this Section 17 states the entire liability of Black Box with respect to infringement
of any third party intellectual property rights, and Black Box shall have no additional liability with respect to any alleged or proven infringement. The obligations of Black Box under this Section 17 extend solely to you and not to any other third
party. All illustrations, drawings, photographs and other descriptive information attached to Black Box's quotations shall remain the property of Black Box and shall not be copied or made accessible to third parties in any way without the prior written
consent of Black Box. Tools made or acquired for the manufacture or modification of products or performance of services remain the property of Black Box notwithstanding that you may have been charged for all or part of the cost thereof. Black Box
will use reasonable commercial efforts to safeguard your drawings and other property while in Black Box's possession, but Black Box shall not be liable to you for any loss or damage to such property,
however caused, if you fail to take possession of such property within twenty-one (21) days of being notified to do so by Black Box.
18. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT TO SECTIONS 13 and 15, BLACK BOX IS NOT LIABLE FOR ANY CLAIM WHATSOEVER THAT EXCEEDS THE COST OF THE PRODUCTS AND/OR SERVICES GIVING RISE TO THE CLAIM, WHETHER BASED IN CONTRACT, WARRANTY,
INDEMNITY OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. IN NO EVENT SHALL BLACK BOX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, LOSS OF REVENUES, PROFITS OR OPPORTUNITIES,
HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER OR NOT BLACK BOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19. All software is provided subject to the license agreement that is part of the software package. You agree to comply with the terms and conditions of such license agreement and all other proprietary restrictions that are affixed to, or provided with,
any products. You shall defend, indemnify and hold harmless Black Box, its parent companies, subsidiary companies
and companies under common control therewith, and its and their officers, directors, employees, agents, representatives, attorneys, subcontractors, vendors and suppliers, from and against any and all claims, damages, losses or expenses, including,
without limitation, attorneys' fees, and amounts paid in settlements of claims or suits, which arise out of your failure to abide by such license agreements or other proprietary restrictions relating to such products.
20. You agree to comply with all applicable laws and regulations. You shall not in any form export, re-export, resell, ship or divert, or cause to be exported, re-exported, resold, shipped or diverted, directly or indirectly, any product or technical
data to any country for which the
Unites States Government or any foreign government, or any agency of the United States Government or any foreign government, at the time of export or re-export, requires an export license or other governmental approval without first obtaining
such license or approval.
21. Except for your payment of the purchase price or fees, neither party shall be liable for any delay or failure to perform to the extent caused by fire, flood, explosion, war, riot, embargo, labor disputes, compliance with any laws, regulations, orders,
acts or requirements from the government, civil or military authorities, terrorist attacks, acts of God or the public enemy, or any act or event of any nature reasonably beyond such party's control.
22. No condoning, excusing or waiver by Black Box of any default, breach or nonobservance by you at any time with respect to any terms set forth herein shall operate as a waiver of Black Box's rights with respect to any continuing or subsequent default,
breach or nonobservance, and no waiver shall be inferred from or implied by any failure to exercise any such rights.
23. Should any provision of this Agreement be declared by any court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby, it
being the intent of the parties that they would have executed the remaining portion without including any such part or portion which for any reason was declared invalid.
24. This Agreement shall be governed by and construed in accordance with the laws of Victoria, Australia, excluding its conflict of laws provisions and excluding the United Nations Convention on the International Sale of Goods. The parties hereby submit
to the exclusive jurisdiction and venue of the state and federal courts situated in Victoria, Australia.
25. You and Black Box agree that this Agreement constitutes the complete and exclusive agreement regarding the subject matter of your order and supersedes any prior communications, representations or agreements of the parties and cannot be altered, amended,
or modified except in writing executed by an authorized representative of each party. Neither electronic mail nor instant messaging shall be considered
a writing sufficient to change, modify, extend or otherwise affect the terms of this agreement.
26. Neither party may sell, assign or transfer its rights, duties or obligations under this Agreement without the prior written consent of the other party; provided, however, that Black Box may (i) assign its rights, duties and obligations hereunder to
any parent company, subsidiary company or company under common control therewith, or to any successor in interest to all or substantially all of the business or assets of Black Box and (ii) subcontract the manufacture of products and/or performance
of services, without your consent. To the extent that assignment is permitted, this Agreement shall inure to the benefit of and be binding upon each party and its permitted successors and assigns.