Jam Cyber Trading Terms and Conditions
Quote, Confirmation, Agreement
These Terms and Conditions (Terms) apply to the sale or supply of all products or systems (Products) and the performance of all services (which includes all software as a service) (Services) by Magnetic Alliance Cyber Pty Ltd, trading as Jam Cyber (ABN: 25 642 089 772) (Jam Cyber) for you (the Customer, you) and will form part of any Agreement unless otherwise agreed in writing with Jam Cyber or subject to other Jam Cyber terms (including the Cyber Security Framework Agreement and Managed Services Agreement). Your acceptance of a Quote from Jam Cyber constitutes your agreement to and acceptance of these Terms and forms a legally binding contract (Acceptance Date). As used herein” Agreement” means this contract for supply distribution, sale or license of any Products or Service entered into between Jam Cyber and you and Quote means any quotation, proposal or offer provided to you by Jam Cyber. Except as otherwise expressly agreed in writing between Jam Cyber these Terms shall apply notwithstanding any provisions to the contrary which may appear in any order form or other document issued by the Customer. Quotes by Jam Cyber are open for acceptance within the period stated in the Quote, or in the event no period is stated, for the period the offer is displayed on the Website, provided that Jam Cyber may amend, withdraw or revoke any Quote prior to the receipt by Jam Cyber of the acceptance of the Quote.
The Customer is solely responsible for the accuracy of any order with respect to the specifications, configuration or other requirements of Products and Services and functionality, compatibility, and interoperability with other products (not authorised by Jam Cyber). The Customer warrants that the information provided to Jam Cyber is complete, accurate and true, and the Customer acknowledges that a failure to provide complete, accurate and true information or instructions to Jam Cyber may detrimentally affect Jam Cybers’ ability to discharge its obligations or exercise its rights under an Agreement. Where the performance under the Agreement relies on the approval confirmation or acceptance by the Customer of a proposal, design, deliverable or any other action by Jam Cyber, Customer shall do so within the period stated in the Agreement, or in the event that no period is stated, within seven (7) days after receipt of a request from Jam Cyber, in absence of such a response within such time period the Customer will be deemed to have accepted the proposal, design, deliverable or any other action as submitted by Jam Cyber.
Products and Services may include software from third parties (Third Party Materials) governed by their own license terms, which may include open source or free software licenses, and those terms operate in addition to and will prevail over these Terms as to the Customers use of the Third-Party Materials. Nothing in these Terms limits the Customers rights under or grants the Customer rights that supersede, the terms of any such Third Party Materials.
The terms of payment are as follows, unless otherwise agreed to in writing by Jam Cyber:
(a) payment to be made 7 days from the date of invoice for accounts Customers or as specified on the quote/ invoice. Otherwise, payment is on a Cash on Delivery (C.O.D.) basis.
(b) payments to be made free of any set-off, or counterclaim and without deduction or withholding by the Customer to Jam Cyber.
(c) Goods and services tax (“GST”) and/or any other related Government taxes will be charged on all sales of goods and services unless details of Customer exemption are provided. GST and other Government taxes are payable by the Customer at the same time as the payment for the relevant supply are payable.
(d). Should the Customer not pay for the Products and /or Services supplied by Jam Cyber in accordance with the payment terms as provided herein, or as agreed to in writing by the Jam Cyber from time to time, all amounts due from the Customer will be considered payable and disputed admitted debt. Jam Cyber may do any of the following: i. withdraw any credit; ii. refuse any further credit; iii. stop supply and iv. charge interest on all amounts owing by the Customer to the Jam Cyber on a daily basis at the rate of 5% p.a. and the Customer agrees to pay this interest to the Jam Cyber.
(e) If credit is satisfactorily established, any credit limit determined by Jam Cyber and as varied from time to time, in its absolute discretion, shall apply to all purchases of Services or Products from Jam Cyber. Jam Cyber 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 all liabilities incurred by the Customer become immediately due and payable to Jam Cyber.
(f) All prices are subject to change with 30 days written notice by Jam Cyber.
Delivery of Products, Performance of Services
The Customer agrees:
(a) Jam Cyber accepts no responsibility for delivery of Products (Delivery) but may elect to arrange Delivery at its discretion and without any liability and at the Customer’s cost and responsibility in all things;
(b) the Jam Cyber reserves the right to charge for any Delivery;
(c) the Customer shall be deemed to have accepted Delivery and liability for Products immediately Jam Cyber notifies the Customer that any Products are ready for collection or upon Jam Cyber delivering any Products to a carrier or to the Customer’s business premises or site nominated by it whether attended or not;
(d) Jam Cyber will not be liable for delay, failure or inability to deliver any Products;
(e) once the Customer is notified Products are ready for collection or Delivery the Customer agrees to pay all costs of Jam Cyber in holding those Products for the Customer.
(f) Minor nonconformities will not prevent or suspend acceptance by Customer of Products, Services or both and Jam Cyber will correct these within a reasonable time. Minor nonconformities are non-conformities or anomalies that do hinder overall operation and intended use of Products or Services in accordance with the specifications.
(g) Jam Cyber may make changes to working methods communication systems software or any other element of the services provided that such changes do not materially affect the functionality of the Products or Services. Unless specifically agreed otherwise Jam Cyber does not warrant the availability, accuracy or completeness, reliability, timeliness or output from Products and Services. Customer shall not use or rely on Products and Services for any other applications or purposes other than agreed in the Agreement.
(h) The Customer explicitly acknowledges that certain features or functionality of Products and Services may rely on the availability and correct functioning of third-party service providers, as may be indicated by Jam Cyber, including the supply of energy, data storage connectivity and communication services. These are outside the control of Jam Cyber and Jam Cyber will have no responsibility or liability in this regard.
(i) In the event of delay or interruption in the delivery of Products or the Performance of Services for reasons not attributable to Jam Cyber or due to variation by the Customer, the timelines for performance by Jam Cyber will be amended accordingly. Jam Cyber will be entitled to reasonable compensation by Customer for any damages cost incurred by such delay.
Use of Products and Services
(a) It is acknowledged by the Customer that Jam Cyber is re-selling computer hardware and software products and Jam Cyber is unable to warrant those Products’ performance compliance to the Customer’s requirements. Jam Cyber further suggests that the Customer refers to Jam Cyber’s suppliers to determine specific product performance and compliance to Customer’s requirements. Further that the Customer test for compliance should it not be satisfied by representations by the relevant supplier with respect product performance compliance.
(b) The Customer shall use the Products and Services only for their intended purposes and in accordance with all instructions contained in manual, guidelines, warranty terms and any other terms and conditions applicable to such Products and Services. The Customer shall maintain the site, site conditions and equipment supplied or used by Jam Cyber in the performance of the Services in (including cabling, fittings and electricity supply) in good condition repair and working order and shall protect same against damage and external influences.
(c) The Customer shall use and shall ensure that end users use web applications, mobile applications in accordance with applicable end user license agreements and where applicable keep a full back up of such software installed readily available. In the event of a software error the Customer shall provide Jam Cyber with alert or error messages and support Jam Cyber in updating or replacing software used in connection with the Products or Services.
(d) Where Jam Cyber supplies any Third Party Materials or indicates that any Third Party Materials may be used, the Customer agrees that Jam Cyber has no liability whatsoever for any defects (including inaccurate or incomplete material) or other failures in, unavailability of, or delay or non-supply of such Third Party Materials. Where Jam Cyber supplies the Third Party Materials, Jam Cyber will notify the relevant third party of any defect or issue and request the third party to investigate. If Jam Cyber or the Customer finds a reproducible defect in any Third Party Materials, as the Customer’s sole remedy, Jam Cyber agrees will use its reasonable endeavours to exercise any rights it may have in respect of the replacement or modification of that Third Party Material under its contract with that third party
Cancellations and Returns
(a)The Customer agrees, other than in the case of warranty or consumer guarantee claims:
i. not to cancel the whole or part of any Order placed with Jam Cyber;
ii. not to return Products without Jam Cyber’s prior written approval and then only if Products are in new and saleable condition with undamaged packaging and less than 1 week has passed since delivery;
(b) Jam Cyber may elect to take back Products on such terms as Jam Cyber requires including:
i. payment of a restocking fee of not less than 20% of the invoice value; and
ii. original invoice as proof of purchase is produced;
iii. not to return any Products which were custom cut, custom processed or custom acquired.
(c) Customers returning Products under warranty must pay all freight. All Products returned for warranty or credit are to be accompanied by a copy of the original invoice.
Retention of title
(a)Title to all Products supplied does not pass to the Customer until full payment has been received.
(b) Jam Cyber reserves the following rights in relation to Products supplied by Jam Cyber until all accounts owed by the Customer for such Product are fully paid: i. legal ownership of the Product; ii to enter the Customers’ premises (or the premises of any associated company or agent where the Products are located) without liability for trespass and retake possession of the Product, and iii to keep or resell any Product repossessed pursuant to b) above.
(c) Notwithstanding clause 6 (b) above, the risk of any loss or damage to or any deterioration in Product from whatever cause shall pass to the Customer at the time of delivery. Jam Cyber will not be held responsible for any damage, loss, and delay occurring to Products delivered on-site. Accordingly, Jam Cyber recommend that you arrange your own insurance.
(d) Until payment has been made for the Products supplied and any other sums whatsoever outstanding from the Customer to the Jam Cyber from time to time (Full Payment) the Customer will hold the Products in a fiduciary capacity for the Jam Cyber.
(e) If the Customer supplies any of the Products to any person before Full Payment the Customer agrees that the Jam Cyber retains title to any proceeds, including but not limited to sale proceeds or an account for such monies or rent monies and insurance monies.
Except as expressly provided by these Terms and to the extent permitted by law all Products and Services provided hereunder, including Third Party Materials are provided “as is” and on an” as available” basis.
(a) Jam Cyber disclaims and excludes all guarantees, warranties or conditions (whether implied by statute, general law, custom or otherwise) or representations and, in particular, exclude any guarantee, warranty, condition or representation that the operation of the Products and Services will be uninterrupted or error free or that the Products and Services will be fit for a particular purpose. No dealing with the Customer shall be or be deemed to be a sale by sample.
(b) If Jam Cyber publishes material concerning the Products, its Services and/or its prices anything so published which is incompatible with these Terms is expressly excluded.
(c) The Customer shall rely on its own knowledge and expertise in selecting any Products and/or Services for any purpose and any advice or assistance given for or on behalf of Jam Cyber shall be accepted at the Customer’s risk and shall not be or be deemed to be given as expert or adviser nor to have been relied upon by the Customer or anyone claiming through the Customer.
(d) All Products are sold subject to any manufacturer’s trading terms, warranties and representations applicable to those Products.
(e) Jam Cyber shall not be liable nor responsible for any failure of Products or Services to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or intended use or otherwise).
(f) Jam Cyber disclaims any responsibility or liability relating to any Products and/or Services:
i. made or performed to designs, drawings, specifications and/or procedures etc, and/or with materials which are provided and/or approved (whether fully or in part) by or on behalf of the Customer; and
ii. utilised, stored, handled and/or maintained incorrectly or inappropriately.
(g) The Customer agrees to check all Products for compliance with all relevant applicable standards and regulatory bodies (Standards) before use, on-sale or application and/or to use or apply all Products in accordance with those Standards with all manufacturer and/or Jam Cyber’s recommendations and/or directions and in accordance with good commercial practice.
(a) Jam Cyber is not liable for any loss caused to the Customer any other activity beyond Jam Cyber’s control including by reason of strikes, lockouts, fires, riots, war, pandemics, embargoes, civil commotions, acts of God or (Force Majeure).
(b) Jam Cyber’s liability in respect of a breach of a consumer guarantee (as defined in the Australian Consumer Law) or any express warranty provided by Jam Cyber for any Service or Product not of a kind ordinarily acquired for personal, domestic or household use is limited, to the extent permissible by law and at Jam Cyber’s option to;
(1) in relation to the Products:
i. the replacement of the Products or the supply of equivalent Products;
ii. the repair of the Products;
iii. the payment of the cost of replacing the Products or of acquiring equivalent Products; or
iv. the payment of the cost of having the Products repaired.
(2) in relation to the Services:
i. the supply of the Services again; or
ii. the payment of the cost of having the Services supplied again.
(c) To the extent permitted by law, all other warranties whether implied or otherwise, not set out in the Agreement are excluded and Jam Cyber is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
i. any increased costs or expenses;
ii. any loss of profit, revenue, business, contracts or anticipated savings;
iii. any loss or expense resulting from a claim by a third party; or
iv. any damage or fault in performance arising out of incorrect or inappropriate operation of the Products by the Customer;
v. any special, indirect or consequential loss or damage of any nature whatsoever caused by Jam Cyber’s failure to complete or delay in completing the order to deliver the Products.
vi. If any provision of this Agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms. If any part of these Terms is invalid or unenforceable, that part is deleted, and the remainder of these Terms remains effective.
The Customer and Jam Cyber agree that, other than as expressly provided in this clause 9, nothing in this Agreement transfers or grants to any party any right, title or interest in or to any Intellectual Property.
(a) Jam Cyber grants to the Customer a, royalty free, revocable, non -transferable, non-exclusive license to use the Intellectual Property Rights in Jam Cyber or its licensors Intellectual Property to the extent necessary for the Customer to exercise its rights and fulfil its obligations under this Agreement and to obtain the full benefit of the Products and Services.
(b) The Customer grants to Jam Cyber a non-exclusive, royalty free, non-transferable and revocable license for the term of the Agreement to use the Intellectual Property in its Material used in the Customer’s Network, solely to the extent required for Jam Cyber to perform the Services.
(c) Jam Cyber may use any Third Party Materials that are licensed to the Customer, but only for the purpose of performing the Services and providing the Products and only in accordance with the relevant terms and conditions applicable to the use of that Third Party Material as notified to Jam Cyber by the Customer in writing, and in accordance with the terms of the Agreement.
The Customer hereby agrees to indemnify and defend at its sole expense: Jam Cyber, its employees, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon the Customer ’s use of all Third Party Materials managed hereunder, including, but not limited to, claims based on software licensing violations, copyright infringement, trademark infringement and patent infringement. In addition, the Customer agrees to pay any judgment and costs associated with such claim.
(a) If the Customer is a corporation (with the exception of a public listed company) the Customer warrants that its directors have either signed or accepted this Agreement.
(b) If the Customer is the trustee of a trust (whether disclosed to Jam Cyber or not), the Customer warrants to Jam Cyber that:
i. the Customer enters into this Agreement in both its capacity as trustee and in its personal capacity;
ii. the Customer has the right to be indemnified out of trust assets;
iii. the Customer has the power under the trust deed to enter into this Agreement; and
(c) If the Customer enters into this agreement as partners, the Customer warrants that all of the partners have signed or authorised the entering of this Agreement.
(a) The Agreement commences on the Acceptance Date or a nominated implementation date (Commencement Date) and continues unless terminated pursuant to these Terms.
(b) Subject to the clauses below the Agreement will continue unless either party gives 30 days written notice to terminate the Agreement.
(c) Each party may terminate this Agreement with immediate effect by written notice to the other party if:
(1) the other party materially breaches this Agreement where:
i. such breach is irremediable; or
ii. if remediable, the other party fails to remedy the breach within 14 days of written notice by the terminating Party.
(2) the other party resolves to become, or is under the threat of becoming, subject to any form of insolvency administration. or
(3) a Force Majeure Event preventing the performance of this Agreement continues for more than 30 Business Days.
(d)Termination of the Agreement for any reason does not:
(1) release the Customer from the obligation to pay any Fees to Jam Cyber whether due before or after termination of the Agreement. Jam Cyber has no obligation to refund any amounts paid to Jam Cyber by the Customer for the Services.
(2) oblige Jam Cyber to provide any further Services or Products other than to use reasonable endeavors to remove any software it has provided and where Jam Cyber on termination has no access it has no responsibility to remove any software or take any other action.
(3) discharge either Jam Cyber or the Customer from any liability which has been incurred by that party prior to termination of the Agreement.
(e)In addition to the right of termination given above, Jam Cyber is entitled to through technical or other means, suspend the Services for any period that the Customer is in breach of any provision of the Agreement.
All notices must be legible and in English and addressed to Jam Cyber at the address CyberSafe@JamCyber.com or via Australia Post to the current postal address as listed at https://JamCyber.com/contact-us/
A waiver of any provision or breach of this Agreement by Jam Cyber must be made by an authorised officer of Jam Cyber in writing. A waiver of any provision or breach of this Agreement by the Customer must be made by the Customer’s authorised officer in writing.
The Customer must pay for its own legal, accounting and business costs and all costs incurred by Jam Cyber relating to any default by the Customer. The Customer must also pay for all stamp duty and other taxes payable on this Agreement (if any).
The Customer agrees that this Agreement may be varied, added to, or amended by an authorised officer of Jam Cyber at any time by 30 days written notice to the Customer. Any proposed variation to these Terms by the Customer must be requested in writing. Jam Cyber may refuse any such request.
This Agreement constitutes the entire agreement between the parties relating in any way to its subject matter. Other than where a consumer guarantee under the Australian Consumer Law applies:
(a) all previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect.
(b) no oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
The parties’ relationship is that of independent contractors and the parties do not intend to create by this Agreement any form of partnership, employment, agency or trust relationship and neither party has, and or will represent that it has, the authority to act for, or incur any obligation on behalf of, the other party.
The Agreement is governed by the laws of South Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of South Australia, and waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.