Triton Terms & Conditions V1.3
1.1. These general Terms and Conditions (T&C’s) apply to all offers, Agreements and legal relationships between Triton Commercial Systems (Qld) Pty Ltd of Australia and Triton Commercial Systems Ltd of New Zealand and her subsidiaries and authorised representatives, hereinafter collectively referred to as “Triton”, and the customer and / or user of the products and services, hereinafter referred to as “The Client”. Exceptions to these general conditions can only be agreed to by Triton in writing.
1.2. Besides these T&C’s Triton may also declare the terms and conditions of Suppliers to Triton applicable. In such case Triton will explicitly advise so and make those additional terms and conditions available to The Client prior to the closing of the (additional) contract. By reaching an Agreement with Triton, The Client declares to be also bound by the additional terms and conditions of the Supplier. In those cases where the T&C’s of Triton and the additional terms and conditions of the Supplier relating to the same situation and in the same framework are in conflict, the T&C’s of Triton have preference, unless otherwise specified.
1.3. “The Client” in these T&C’s means any employee of the customer and / or the end-user of the products and services of Triton, or any other party with whom Triton enters into a contractual Agreement, or to whom Triton provides a tender or any delivery or service. The meaning of “The Client” also includes the (legal) successor of any of the aforementioned parties.
1.4. “Supplier” in these T&C’s means the person or company directly or indirectly provides services, products and / or knowledge, which comprises part of the Agreement between The Client and Triton.
1.5. “The Offer” in these T&C’s refers to any written or electronic communication made by Triton to The Client in relation to the offer of goods or services. This includes but is not limited to; emails, letters, proposals, invoices.
1.6. “SUPP” means the software upgrade partnership program
1.7. “Subscription” means the provision of software as a service
1.8. All other conditions remain in force if any provision of these T&C’s turns out to be invalid or not applicable, for whatever reason. Triton will consult The Client about new provisions to replace any invalid provision, with the purpose and intent to replace it such that the original provision remains as much as possible preserved.
- Offers and Information
2.1. Triton provided price lists, brochures, print and on the website(s) data, etc. are subject to change. The offers made by Triton, tenders and quotations, in whatever form, are binding, even if based on information supplied by The Client, designs, drawings, and data derived therefrom. For any direct or indirect damages, in whatever form and from whatever reason, resulting from this information and / or counselling Triton is not liable.
2.2. All prices are provided by Triton exclusive of GST and other government levies and any customisation in the context of future costs.
2.3. Triton reserves the right to refuse requests for Subscriptions or products, or demand prepayments without giving any reason.
3.1. A binding agreement according to these T&C’s is made between Triton and The Client In the following circumstances:
a. The Client applies to Triton for goods and services and is confirmed by Triton in writing or by e-mail
b. The Client pays an invoice for goods and services provided by Triton
c. The Client signs specific project terms and conditions
3.2. Additions and changes to Triton T&C’s are only binding on Triton when they are confirmed in writing by Triton.
3.3. Triton is authorised, if deemed necessary or desirable for the proper performance of its services, to engage third parties.
3.4. The Client and Triton expressly agree that the use of electronic communications (including internet) shall constitute valid Agreements, once the conditions specified in this article are met. In particular, the lack of an ordinary signature does not affect the binding of (i) The Offer (ii) acceptance of The Offer and (iii) the acknowledgement thereof. The electronic files and communications as kept by Triton serve as compelling evidence, to the extent permitted by law.
4.1. Statements of Triton with respect to colour, size, performance, features, etc. are approximate only and are non-binding.
4.2. Images, descriptions, photographs, catalogues, advertisements, promotions and on the websites of information contained Triton, in whatever form, shall not bind Triton.
4.3. The products ordered by The Client are for use inside the territory agreed between the parties. The use of the products and compliance with the rules outside the agreed territory is the risk of The Client.
- Implementation of the Agreement
5.1. Triton shall perform its services under the contract to its best insight, expertise and ability and use its best endeavours to carry out its work.
5.2. Triton ensures confidentiality of the information made available by The Client to Triton.
5.3. Triton is not liable for damage of any kind resulting from inaccurate or incomplete information provided by The Client, unless such inaccuracy or incompleteness results from intent or gross negligence of Triton.
5.4. The Client shall provide Triton all the proper and necessary data or information and full cooperation which is required or useful for the execution of the Agreement in a timely fashion.
5.5. The Client is responsible for the proper and timely use and application of the equipment in its organisation and the control of associated security procedures.
5.6. If Triton staff needs to perform work at The Client site, The Client shall provide free of charge such facilities as reasonably required to Triton staff, such as, if applicable, a workspace with internet facilities. The Client shall indemnify Triton from claims of third parties, including Triton staff, who suffer injury resulting from the execution of the contract which results from the acts or omissions of The Client or from unsafe situations in its establishment.
5.7. The implementation of the Agreement uses telecommunications facilities, including the Internet. The Client is responsible for the correct choice of such facilities and its availability in a timely and adequate manner, except for facilities for equipment which is provided by Triton. Triton is never liable for damages or costs due to transmission errors, malfunctions or non-availability of such equipment and facilities, unless such costs or damages resulting from intent or gross negligence of Triton.
6.1. Subscription consists of a monthly fee which allows the use of Triton software and includes SUPP as outlined further in this agreement.
6.2. Subscription is a 36 month commitment term from the date of installation.
6.3. Software subscribed as part of this agreement (if applicable), is outlined in this proposal or received invoice.
- Software Upgrade Partnership Program (SUPP)
7.1. SUPP is only applicable if The Client has purchased Triton software and elects to be in the program.
7.2. SUPP consists of a quarterly fee which allows software to be upgraded to the latest version at no software charge (install and commissioning charges still apply), and a predetermined amount of support blocks as listed in the SUPP information sheet provided by your Customer Solutions Consultant.
7.3. SUPP is a 12 month commitment term.
8. Invoicing, Rates, Periods
8.1. The amount to invoice is determined per the first day of each billing period.
8.2. Unless otherwise stated, all prices and tariffs in Australian or New Zealand dollars exclude GST, shipping and any other charges imposed by governments. Where possible, Triton will provide prices and/or invoices in the local currency.
8.3. The Client acknowledges that it is required to give 3 months written notice to an authorised Triton representative if it is decided to end subscription or SUPP at the end of the commitment term. The written notice requires acknowledgement from Triton to come into effect. If no written notice is received a new identical commitment term automatically comes into effect with the current T&C’s intact and in effect for the duration of the new term.
8.4. Triton is entitled by written notification to adjust pricing at the end of the commitment period in line with local Consumer Price Index (CPI) rates that have accrued over the commitment period.
- Deposits and Payments
9.1. Invoices are required to be paid strictly within 7 days of executing this agreement unless otherwise stated in an invoice or in writing by an authorised Triton representative.
9.2. Deposit invoices are calculated by the following formula; add software (if purchased), hardware, estimated delivery and training costs together then multiply by 60%.
9.3. Payment for the 40% balance of a deposit invoice is required before commissioning commences. A final invoice is sent at the completion of commissioning for disbursements, any overruns and other incidentals.
9.4. Any delay in payment may result in project delays which are solely the responsibility of The Client.
9.5. If it becomes necessary to issue The Client a formal reminder to pay, such reminder will incur an administration fee of $50, – per reminder or final notice.
9.6. In the event of liquidation, bankruptcy, seizure or receivership of The Client, the claims of The Client to Triton become immediately payable.
- Delivery, Title of Goods
10.1. Delivery is dependent on specification and current orders in hand. Typically 4-6 weeks on standard systems from receipt of order and deposit. Solutions where conveying and automation is involved typically 12-16 weeks from receipt of order and deposit.
10.2. All goods quoted ex-store Brisbane, Christchurch or Auckland unless otherwise stated. All freight, insurance, inspection, custom duties, taxes or charges are charged to The Client account.
10.3. Cancellation of orders requires written acceptance by an authorised officer of Triton. In the event of cancellation, The Client continues to be wholly liable for the software commitment term, the cost of any special works or customised equipment, customised software, carried out to the point of cancelation.
10.4. All goods delivered to The Client shall be held by The Client for Triton as owner until all monies owing in respect of the supply of such goods and all associated costs have been paid in full to Triton. Title to the goods shall remain Triton’s and shall not pass to The Client until payment has been made in full. Until all such monies and costs have been paid, The Client agrees to return the goods to the company on demand and if demand is made by Triton The Client agrees that Triton shall have free unrestricted right of access to the premises where the goods are located for the purpose of exercising their right as owners of the goods and to uplift them.
- Supply and Transport
11.1. Unless agreed otherwise, delivery takes place by or on behalf of Triton to the address given by The Client. From the moment of delivery, all risks of loss, corrosion, damage, etc., whatever the cause, passes to The Client.
11.2. In case of partial deliveries Triton is entitled to invoice each partial delivery separately.
11.3. If the goods after the expiry of the delivery date are available but not taken by The Client, Triton will store the goods at their disposal, at The Client’s expense and risk. In this case Triton has the choice to demand to fulfil the Agreement or to terminate the contract, without prejudice to its rights to compensation for damages and lost profits, including the costs of storage.
11.4. Triton determines the mode of transport, shipping, packaging and such. The Client is required to check each shipment immediately upon receipt for completeness, defects, damaged goods and completeness of fulfilment of the order, or delivery of erroneous goods, including surplus. In case of damage or missing packages, this should always be noted on the bill of lading of the carrier. Any divergence with the ordered goods should be reported to Triton. Damaged or missing packages should be reported within a period of three (3) working days after delivery is made to the carrier. The complaint must contain the delivery number or invoice number of the shipment.
11.5. Acknowledgment of receipt is deemed approval of the shipment by The Client. From the time of receipt, all risks of loss, decay, damage, etc., whatever the cause, is transferred on The Client.
11.6. When and if a complaint is found justified Triton will, at its discretion and within reasonable time, either repair the defect or replace the defective goods, without The Client being entitled to any compensation.
11.7. The filing of a complaint does not relieve The Client from its obligations to pay Triton.
11.8. Triton reserves the right to set different or additional conditions for shipments outside the agreed territory.
- Complaints as to Service
12.1. Complaints about the service should be filed by The Client within two weeks after the discovery of the reason for a complaint and should be reported to Triton in writing. The notice must give as detailed a description as possible of the shortcoming, enabling Triton to respond adequately.
- Subscription, Providing Equipment
13.1. All and any equipment supplied to The Client as part of the Subscription remains the property of Triton. The Client is not entitled to sell, pledge or encumber to third parties the equipment, software and other products and delivered goods proprietary to Triton unless the parties expressly agree otherwise. The Client shall notify Triton as soon as may be reasonably expected and not later than 2 (two) days after third parties (intent to) seize the Triton proprietary equipment.
13.2. The Client is obliged to ensure careful treatment of the Triton proprietary equipment. The Client must immediately notify Triton in case of any missing and / or damaged equipment. The cost of repair or replacement due to loss or improper use shall be borne by The Client.
13.3. The Client undertakes to insure and keep insured the Triton proprietary equipment against fire, explosion, water and theft and the policy of this insurance is made available to Triton on first request for inspection.
13.4. All rights of intellectual property relating to software products and the underlying source code remain with Triton at all times. The Client will neither remove nor alter any signs of the property owner.
13.5. The Client is not allowed to delete or modify indications of patents, copyrights, trademarks, trade names, serial numbers or other intellectual or industrial property rights from or through the Triton proprietary products.
14.1. The Client shall, immediately after the occurrence of a fault on the equipment, notify Triton with a detailed description of the malfunction issued by an appropriately qualified employee of The Client. The Client will provide the Triton or designated third party access to the location of the equipment and make available all other necessary equipment and to cooperate with Triton for maintenance work on The Clients’ site.
14.2. At the request of Triton an appropriately qualified employee of The Client will be present for consultation during maintenance.
14.3. The Client is NOT authorized to connect other than by or on behalf Triton supplied equipment and systems to Triton proprietary equipment. The Client is NOT authorized to install software other than by or on behalf of Triton supplied on Triton proprietary equipment. The cost of investigating and remedying malfunctions resulting from connecting third party equipment or installing and / or use of third party software, are always borne by The Client, including the costs incurred by Triton, as determined against its usual rates.
14.4. The base install rate is applicable on standard business days as defined by local government and/or federal authorities of The Client. The base rate includes up to 8 site hours per day. Overtime installation rates may apply outside any of these parameters. Weekend rates are double the base rate. Public holiday rates are triple the base rate. Subsequent maintenance work is at standard published rates.
14.5. The Client is responsible for travel and accommodation expenses, power supplies and technical facilities, necessary for the equipment to function. Maintenance shall expressly not include the aforementioned facilities and supplies.
14.6. Triton accepts no maintenance obligations for equipment outside the agreed territory, unless otherwise agreed in writing.
15.1. All software is guaranteed for 12 months. Triton manufactured hardware is guaranteed for 6 months from the installation date. Warranty does not include on-site repairs except at our discretion.
15.2. Goods under warranty should be forwarded freight paid to a Triton branch at Triton’s discretion. Under no circumstances will Triton be liable for any consequential or contingent damage due to the performance of equipment supplied or serviced by it or for services performed by Triton staff. OEM equipment carries original manufacturer warranty only.
15.3. Warranty terms may be modified by specific requirements undertaken within Maintenance Agreements
- Force Majeure
16.1. If force majeure prevents Triton to carry out the Agreement, permanently or temporary, Triton shall be entitled to wholly or partially suspend or dissolve the Agreement, by written notice to that effect without judicial intervention and without obligation to pay compensation. The Client shall compensate Triton for services already performed by Triton, before the existence of force majeure, or the (further) implementation of the Agreement following a suspension period. In case of suspension Triton will still be entitled to dissolve the Agreement wholly or partially.
16.2. Triton also has the right to invoke force majeure if the circumstance rendering (further) fulfilment occurs after Triton should have fulfilled its obligations.
16.3. Force majeure shall include all circumstances, which renders Triton or its Suppliers unable to reasonably fulfil its obligations, temporarily or permanently, such as strikes, transport difficulties, fire, earthquakes and government measures, including also import and export prohibitions, and quota restrictions.
17.1. Triton is never required to pay direct or indirect damages resulting from or arising from defects in goods or services or resulting from not or not timely or correct functioning of its supply of goods and / or services, except in case of intent or gross negligence by Triton. Any liability for consequential loss (business failure, loss of income etc.), data loss and / or consequential damages from any cause whatsoever, including delay in the delivery of goods and services, is expressly excluded.
17.2. Triton is not liable for its employees and / or its Suppliers hired to The Client or third party damage, for whatever reason or any cause, except in cases of intent or gross negligence attributable to Triton. In no case extends the liability beyond the coverage of the insurance taken by Triton.
17.3. Triton is not liable for damages of any kind whatsoever which arises or is caused by improper, careless or improper use, or use for purposes other than normal.
17.4. The Client shall indemnify Triton and its employees against claims by third parties for compensation for material and immaterial damage, which are directly or indirectly caused by (the use of) Triton delivered equipment, unless the damage is caused by intent or gross negligence of Triton staff
17.5. The liability for Triton under the Agreement with The Client is limited to the amount of the contract over the last twelve months, excluding GST in all circumstances.
- Dissolution / Termination / Arrears
18.1. The Client is deemed in default and the remaining charges of the subscription or SUPP commitment term are payable immediately if:
a. The Client fails to meet its obligations of the Agreement in particular the non or late payment;
b. The Client is in arrears more than 30 days from an invoice due date;
c. Triton has reasonable cause to fear that The Client shall fail to perform and does not comply with a written notice stating the grounds for the notice within a reasonable period set by declaring willingness to meet obligations;
d. The Client files for bankruptcy, is declared bankrupt, files for an application for suspension of payment, or assets are seized and such seizure is not lifted within ten (10) days after seizure;
18.2. In the cases referred to in 18.1 Triton is entitled without any liability for damages and without relinquishing its due rights, including rights in respect of charges already due or interest and the right to compensation, and without notice or judicial intervention, to:
a. Dissolve the Agreement entirely or partially by a written notice to The Client and / or;
b. Suspend services and obligations under the Agreement in whole or in part, to and / or;
c. To claim any amount payable in full for the entire contract length immediately by The Client and / or
d. To have returned any Triton proprietary equipment and/or software immediately.
18.3. The Client shall at the first request of Triton return Triton proprietary equipment in case of termination of a subscription for reasons described above in this article or because of the end of the contractual term of the Subscription.
18.4. If the Agreement is terminated or dissolved in any way the provisions on confidentiality, termination, applicable law and litigation remain fully applicable. Triton also remains entitled to claim damages suffered by it.
- Applicable law and disputes
19.1. All Agreements between the parties and resulting legal relations are subjected to the laws of the jurisdiction in which the applicable subsidiary of Triton is registered.
19.2. All disputes arising from or related to the contract to which these conditions apply whether the conditions themselves and their interpretation or implementation will be settled by the competent court in the jurisdiction where the applicable Triton subsidiary holds its official place of business, at the choice of Triton, unless otherwise agreed.
19.3. Triton is entitled to change from time to time these T&C’s and is not required to provide notice to The Client.