This Agreement made between SAI Global and the Customer in relation to the supply of Products comprises the terms and conditions set out:
(a) herein (“Terms And Conditions Of Sale”);
(b) in a Proposal accepted by the Customer (in the event a Proposal has been issued to the Customer);
(c) in a Product Description; and
(d) in an Invoice (if any).
In this Agreement, the following words and phrases with their first letter(s) capitalized shall have the meaning ascribed to them as set out below:
“Agreement” means these Terms and Conditions of Sale;
“Charges” means the amount payable by the Customer for a Product as set out in an Invoice;
“Content” means the copyright protected content accessible via a Service;
“Customer” means the purchaser of the Product or the party who has accepted the Proposal and to whom the Invoice is issued;
“Goods” means any publication selected by the Customer specified in an Invoice being:
(a) in paper format;
(b) in paper format as part of a subscription service; or
(c) in PDF format, which is not provided as part of a Service.
“Minimum System Requirements” means current and previous major releases of Internet Explorer, Firefox and/or Safari browsers and/or the current version of Chrome browser, as updated by the relevant provider from time to time. Any browser that is no longer supported by the provider shall be deemed not to meet the Minimum System Requirements;
“Invoice” means the online or paper form which may include the following information:
(a) the Customer’s Details;
(b) the Product(s) selected by the Customer, including any specific or optional features selected by the Customer;
(c) where the Product is a Service, the number of licences or users of the Service;
(d) the Charges for the Product(s) selected by the Customer, inclusive of any GST, delivery charges and insurance (If applicable);
(e) the Subscription Date; and
(f) where the Product is Goods, a delivery address.
“Product” means a Service or Goods;
“Product Description” means the description of each Product as set out in a Proposal or provided by SAI Global or available on the relevant SAI Global website, from time to time, which in relation to a Service may include specific usage rights (if any) in relation to the Content provided through that Service;
“Proposal” means a proposal delivered by SAI Global to a potential Customer in seeking to purchase a Product;
“SAI Global” means the relevant Product supplier being either SAI Global Ltd ACN 050 611 642 whose registered address is Level 37, 680 George Street, Sydney, New South Wales, 2000, Australia or Anstat Pty Ltd ACN 115 133 152 whose registered address is Level 37, 680 George Street, Sydney, New South Wales, 2000, Australia or any other related body corporate of and nominated by SAI Global Ltd and whose identity is confirmed on the Invoice;
“Service” means an online subscription service selected by the Customer specified in an Invoice or as accepted by the Customer pursuant to a Proposal and as described in the Product Description;
“Subscription Date” means the date from which a Service or a subscription for a Good is provided by SAI Global, which may be stated on the Invoice, or any anniversary of that date; and “Subscription Period” means the twelve (12) month period beginning on a Subscription Date.
2.1 In consideration of payment of the Charges in full, SAI Global hereby grants to the Customer the non-exclusive, non-transferrable right for the duration of the then current Subscription Period to:
(a) use and access the Service listed in an Invoice or a Proposal that has been accepted by the Customer;
(b) access the Content via the Service; and
(c) use the Content obtained via the Service in accordance with the Product Description, on the applicable terms and conditions set out in this Agreement.
2.2 The rights granted under clause 2.1 are for the Customer’s internal business purposes only, and shall not extend to:
(a) any related body corporate or associate of the Customer;
(b) any shareholder of the Customer;
(c) any business unit or division located outside the country where the Customer primarily operates; or
(d) any member and/or subscriber of the Customer, where the Customer is a membership or subscription organisation.
For the avoidance of doubt, this means that each party that has its own Australian Business Number and/or operates in a jurisdiction different to that of the Customer or who is not an employee of the Customer needs to be separately licenced to use the rights granted under clause 2.1.
2.3 The Customer shall keep any usernames and passwords confidential and will not disclose them to any persons that are not current employees and/or officers of the Customer and shall use all reasonable efforts to prevent any unauthorised access to the Service(s) and/or use of the Content and, in the event of such unauthorised access, shall immediately notify SAI Global.
2.4 Except as permitted under this Agreement, the Customer shall not:
(a) attempt to copy, modify, duplicate, create a derivative work from, republish, adapt all or any part of the Products and/or the Content;
(b) reverse engineer, reverse compile or disassemble any or part of the Service(s);
(c) access all or part of the Service(s) in any way in order to build a product or service which competes with the Service(s);
(d) licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit or make the Service(s) and/or Content available to any third parties;
(e) attempt to obtain, or assist a third party to obtain access to the Service and/or Content other than as expressly provided in this clause 2;
(f) distribute or share copies of the Goods, Products and/or the Content with any third party or embed or copy any part of the Goods, Products and/or the Content into any document that may be accessed by or distributed to any third party; and
(g) assemble a reference collection of the Goods, Products and/or the Content by accumulating or compiling the more 10% of publications that may be derived from Goods, Products and/or the Content in hard copy or other electronic format.
2.5 SAI Global may suspend access to a Service to fix any faults, defects or other irregularities in the Service and shall, if practicable use its reasonable efforts to give the Customer at least 2 hours notice in advance of such suspension.
2.6 SAI Global shall have no liability for the Customer’s inability to use and access any Services or download any PDFs caused by the failure of the Customer’s computer and telecommunications (including its Internet service and browser) systems to meet the Minimum System Requirements.
3.1 In consideration of payment of the Charges in full, SAI Global will supply and deliver the Goods listed in an Invoice or a Proposal that has been accepted by the Customer on the applicable terms and conditions of this Agreement.
3.2 SAI Global will provide the Customer with an estimated date of delivery, which is its best estimate, but may be subject to change without notice.
3.3 SAI Global will deliver the Goods to the delivery address provided by the Customer in the Invoice or, if SAI Global otherwise agrees to any other Australian address notified to SAI Global in writing.
3.4 SAI Global shall deliver the Goods via a reputable third party courier service or via the postal service and therefore accepts no responsibility or liability for any loss or damage to the Goods once provided to the courier or postal service.
3.5 SAI Global shall retain ownership of the Goods and the Customer shall be responsible for maintaining the Goods in a fit, re-saleable and merchantable condition until such time as SAI Global receives full payment of the Charges in cleared funds.
3.6 The supply of Goods by SAI Global under this Agreement, including where delivered on-line as a PDF download, does not confer on the Customer any rights whatsoever in the intellectual property rights contained in those Goods, and sub-clauses 2.4(a) and (d) shall apply.
3.7 In relation to Goods that are not provided for a Subscription Period, the Customer may cancel an order within 30 days of the date of the Invoice, provided that, the Goods are returned to SAI Global at the Customer’s cost in a fit, re-saleable and merchantable condition. SAI Global will inspect the condition of any such returned goods and provide a refund, provided that, the terms and conditions of this clause 3.7 have been strictly complied with.
4. PROPRIETARY RIGHTS
4.1 The Customer acknowledges that this Agreement grants no rights, title or interest in any such intellectual property rights to the Customer in the Content of any of the Products, other than as expressly set out in this Agreement.
4.2 The Customer hereby agrees to comply with any copyright notices related to the Products received and shall not remove any copyright notices or other intellectual property rights notices.
5.1 Unless otherwise indicated, this clause 5 sets out the entirety of SAI Global’s liability to the Customer and in relation to the Customer’s use or inability to use the Products provided under this Agreement.
5.2 The Customer shall immediately inform SAI Global if it becomes aware of any unauthorised use of any of the intellectual property rights in any Products or Content received by the Customer under this Agreement, and shall provide SAI Global with any reasonable assistance in relation to taking action against any such unauthorised use, provided that, SAI Global shall re-imburse the Customer for its reasonable costs and expenses incurred in providing such assistance.
5.3 To the fullest extent possible by law, and except where expressly indicated in this Agreement, SAI Global expressly and impliedly excludes any and all liability under this Agreement and makes no warranties, guarantees, representations or indemnities in relation to the Products and/or the Content provided under this Agreement.
5.4 SAI Global expressly and impliedly excludes any: indirect loss; consequential loss; loss of goodwill; loss of opportunity; loss of business; or loss of profit, whether arising in contract, tort (including negligence, misrepresentation or breach of statutory duty), as a result of:
(a) breach of this Agreement by SAI Global or arising as a result of the information contained in a Product; or
(b) arising as a result of the suspension or termination of any of the Products, whether or not arising from SAI Global’s exercise of its rights and obligations under this Agreement, including, to conduct maintenance, in accordance with this Agreement.
5.5 SAI Global’s total aggregate liability to the Customer under this Agreement shall not exceed an amount that is equal to the Charges in relation to the Product(s) to which the liability relates.
6. PAYMENT, TERMINATION AND RENEWAL
6.1 Unless paid in full in cleared funds prior to delivery or prior to the Subscription Date, the Customer will pay any Invoices in full within 30 days from the date of that Invoice. All Charges are subject to GST at the then prevailing rate for Products purchased.
6.2 SAI Global may terminate this Agreement by giving the Customer 30 days notice, provided that it refunds the Customer on a pro-rata basis any Charges for any remaining unused Subscription Period at the end of the 30 day notice period.
6.3 The Customer may terminate any Product provided for a Subscription Period by providing notice in writing to SAI Global, provided that SAI Global shall be under no obligation to provide any refunds for any unused Subscription Period.
6.4 All Products provided for a Subscription Period will continue to be provided for a subsequent Subscription Period unless cancelled by either Party giving the other Party notice in writing not less than 14 days before the end of the then current Subscription Period.
6.5 SAI Global may terminate this Agreement:
(a) immediately upon a material breach by the Customer of this Agreement;
(b) failure of the Customer to pay any Invoices within 30 days of the date of the Invoice.
6.6 Upon termination or expiration of this Agreement, the Customer shall:
(a) immediately cease any and all use of the Service(s) and/or Content subject to any usage rights under the Product Description and shall cease to receive any Goods provided for a Subscription Period; and
(b) remove, destroy or delete all printed or downloaded electronic copies of any part of the Service held by the Customer.
6.7 To ensure compliance with clause 6.6, SAI Global may:
(a) require the Customer, at its own cost, to provide a certificate that removal or destruction has occurred; or
(b) appoint an auditor to verify the removal, destruction or deletion of the printed or downloaded electronic copies of the Service. The Customer agrees that the auditor shall be entitled, at all reasonable times during normal business hours of the Customer and upon reasonable notice, to audit the Customer’s internal processes and inspect and take copies any records and documents of the Customer, its agents or subcontractors relating to the performance of its obligations under this Agreement.
7. BUYER ADVANTAGE PROGRAM
7.1 SAI Global may, at its sole discretion, make an offer to the Customer to join its “Buyer Advantage Program” (“BAP”). The Customer may accept SAI Global’s offer to join the BAP, by paying the Invoice relating to the BAP in accordance with the terms and condition so this Agreement.
7.2 The BAP is an annual program and renewal shall occur at the Subscription Date or other date agreed between SAI Global and the Customer. Clause 6.2 shall apply in relation to renewal of the BAP.
7.3 Upon payment of the Invoice for the BAP, the Customer shall be entitled to:
(a) 25% off the retail price of Standards On-Line Collections
(b) 15% off the retail price of Australian Standards® and handbooks
(c) 10% off the retail price of Standards from ISO, IEC, DIN, JSA and most BSI Standards
(d) Monthly email newsletter
(e) Commercial credit account (pending successful credit check) offering 30 day payment terms.
8.1 If there is inconsistency between any provisions set out the documents forming part of this Agreement, the provisions in those documents will be interpreted in the following order of priority to the extent of any inconsistency:
(b) Product Description;
(c) Invoice; and
(d) Terms And Conditions Of Sale and for the avoidance of doubt, if there is inconsistency between terms relating to a Product set out in a Proposal and in a Product Description out elsewhere (for example on SAI Global’s website), the terms relating to a Product set out in a Proposal prevail to the extent of the inconsistency.
9.1 The Customer acknowledges that:
(a) SAI Global may collect personal information (as defined in the Privacy Act 1988 (Cth) and similar legislation of the Commonwealth and the States and Territories of the Commonwealth);
10.1 The Customer agrees that:
(a) it shall not commit, authorise or permit any action which would cause SAI Global and/or SAI Global’s affiliates to be in violation of any applicable anti-bribery laws or regulations;
(b) this obligation applies in particular to illegal payments to government officials, representatives of public authorities or their associates, families or close friends; and
(c) it will never offer or give, or agree to give, to any employee, representative or third party acting on SAI Global’s behalf nor accept, or agree to accept from any employee, representative or third party acting on SAI Global’s behalf, any gift or benefit, be it monetary or otherwise, that could breach any law or policy applicable to SAI Global.
10.2 The Customer will notify SAI Global immediately if it:
(a) becomes aware;
(b) has reason to believe; or
(c) has any specific suspicion that there has been or will be a breach of this clause 10.1 or there was corruption involved with regard to the negotiation, conclusion or performance of this Agreement
10.3 Any breach of this clause 10.1 by the Customer, its employees, agents or sub-contractors (whether with or without the knowledge of the Customer) will be deemed a material breach of this Agreement, and will entitle SAI Global to recover from the Customer the amount of any loss resulting from such material breach and to recover from the Customer the amount or value of any such gift, consideration or commission.
10.4 The Customer acknowledges that it has read a copy of SAI Global’s Whistleblowing Policy (as set out on its website at SAI Governance Policies) including reporting hotline procedures and communicated the same to its relevant employees, agents and contractors.
11.1 The Customer may not assign, transfer, pledge or otherwise encumber this Agreement and any such attempt by the Customer to assign this Agreement shall be null and void and confer on the assignee no rights to use the Service(s) and/or Content.
11.2 SAI Global may assign this Agreement without notice to an Affiliate who is the owner of the Service(s) and the owner or the licensee of the Content.
11.3 A party’s failure to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver or relinquishment of that right or of that party’s right to assert or rely upon the provisions of this Agreement. Any waiver of a provision of this Agreement shall not be effective unless made in writing and properly executed by the waiving party.
11.4 Unless specifically provided otherwise, rights arising under this Agreement do not preclude rights at general law.
11.5 This Agreement, the Invoice and any documents expressly incorporated by reference into this Agreement as part of this Agreement, represent the entire agreement between the parties in relation to the Products and/or the provision of the Content by SAI Global.
11.6 If any provision of this Agreement is found to be fully or partially invalid or unenforceable it shall be deemed to be deleted from this Agreement, and the remainder of this Agreement, to the extent permissible shall be valid and binding as if such provisions were not previously included in this Agreement.
11.7 SAI Global shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of SAI Global or any other party), failure of a utility service including transport or telecommunications services, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. SAI Global shall use its reasonable efforts to notify the Customer of such an event and its expected duration.
11.8 Any notice required to be given under this Agreement to SAI Global shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in the Invoice
11.9 Notwithstanding termination of this Agreement, the following clauses shall survive termination of this Agreement: clause 1 (to the extent necessary to interpret any of the following clauses), clauses 2.4, 4, 5, 6.6 and 8 (inclusive).
11.10 This Agreement shall be governed by and construed under the laws and regulations of New South Wales and the exclusive jurisdiction of the courts of New South Wales.