The following terms and conditions may be subject to consumer protection laws, including the Competition and Consumer Act 2010 (Cth), and other applicable Australian consumer protection laws and regulations. Nothing in these terms and conditions is intended to exclude, restrict or modify any rights available to the Customer under the Competition and Consumer Act 2010 (Cth) or any other applicable Australian consumer protection laws and regulations which may not legally be excluded, restricted or modified, in the circumstances that such consumer protection laws and regulations are applicable and available to the Customer.
1.1. These terms and conditions apply to and form part of the Agreement between the Supplier and the Customer. They supersede any previously issued terms and conditions of sale and/or supply.
1.2 Acceptance by the Supplier to provide the Goods or Services described or referred to in any Purchase Order issued by the Customer constitutes the formation of the Agreement and is expressly subject to and conditional upon the terms and conditions contained herein.
1.3 Any Purchase Order or any direction to proceed from the Customer to the Supplier with engineering, procurement, manufacture or shipment shall constitute acceptance of these terms and conditions, a representation that the Customer is solvent, and the Customer’s consent to enter into the Agreement with the Supplier.
1.4 In the absence of a formal Purchase Order, any statement of intent or correspondence from the Customer to the Supplier seeking to acquire Goods and/or the performance of Services from the Supplier shall be taken to amount to a “Purchase Order” for the purposes of the Agreement and all subsequent references herein to a “Purchase Order” shall thus include any document captured by this clause where no Purchase Order has in fact been issued.
1.5 Any alteration, amendment, waiver or cancellation of the terms in this Agreement and any additional or different terms and conditions provided in any communication from the Customer are rejected by the Supplier and shall not be effective or binding on the Supplier unless expressly agreed to in writing by the Supplier’s authorised representative.
1.6 The Customer acknowledges and agrees that none of the Supplier’s agents or representatives other than a manager or officer are authorised to make any representations, statements, conditions or agreements, nor is the Supplier bound by any such unauthorised actions or representations.
1.7 The Customer acknowledges and agrees that:|
(a) the Customer has determined that the Goods are fit for the purpose for which they are required;
(b) the Customer has not relied on the skill and judgement of the Supplier in selecting the Goods;
(c) the Customer has checked the Goods for suitability, functionality, completeness, and compliance with any applicable specifications; and
(d) the Supplier will not be liable for the provision of goods or services other than in respect of those specified on any Purchase Order, invoice, or Quotation, pursuant to which the Supplier has supplied the Goods to the Customer.
2.1. The Goods or Services shall be supplied by the Supplier in a timely manner and in accordance with the Agreement, including any specifications set out in the Purchase Order.
Where the Purchase Order does not contain any specifications or where the specifications are ambiguous or unclear, the specifications set out in the Supplier’s Quotation shall apply, if any are applicable to the Goods or Services.
3.1 The Customer must pay to the Supplier the Price based on the Goods or Services requested in a Purchase Order being the amount set out in the Supplier’s Quotation, or in the absence of such, at the then current prevailing rates of the Supplier for those Goods or Services.
3.2 Any increase in the cost of delivery and/or supply of the Goods or Services between the date of the Purchase Order and the date of delivery or supply of those Goods or Services shall be borne by the Customer.
3.3 The Supplier may change the Price at any time at its discretion. If the Supplier’s Price increases after issuing a Quotation to the Customer or where the Customer has already instructed the Supplier to proceed with the Purchase Order, the Supplier must provide the Customer with written notice of the Price increase (which must be reasonable in such circumstances).
3.4 Any Price quoted by the Supplier is based on the costs of labour, materials and statutory obligations applicable at the date of the Quotation. Any variations in these rates or obligations incurred by the Supplier shall be payable by the Customer.
3.5 The Supplier shall be entitled to charge its reasonable additional costs and fees for all delays caused as a result of the Supplier obeying any instructions given by the Customer or the Customer not fulfilling the Customer’s obligations under the Agreement.
4.1 The Price is exclusive of GST. The Customer must pay the Supplier an additional amount for any GST payable in respect of any taxable supply made under or in connection with the Agreement, provided the Supplier provides the Customer with a tax invoice in respect of that taxable supply.
4.2 If there is an adjustment event in relation to the taxable supply:
(a) the Supplier must refund to the Customer the amount by which the GST paid by the Customer pursuant to clause 4.1 exceeds the adjusted GST on the taxable supply; or
(b) the Customer must pay to the Supplier the amount by which the adjusted GST on the supply exceeds the amount of GST paid pursuant to clause 4.1.
4.3 Any other taxes (excluding income taxes), duties, fees, charges or assessments of any nature levied by any government authority in connection with the Agreement shall be paid directly by the Customer to the governmental authority concerned. If the Supplier is required by law or otherwise to pay such a levy and/or fines, penalties or assessments in the first instance, or as a result of Customer’s failure to comply with any applicable laws or regulations governing the payment of such levies by the Customer, the amount of any payments so made by the Supplier shall be reimbursed by the Customer to the Supplier upon submission of the Supplier’s invoices.
5.1 All risk and liability for the Goods will transfer to the Customer on delivery of goods to the Customer (or to any third party who is acting on behalf of the Customer).
5.2 The Supplier shall remain the sole and absolute owner of the Goods until the Price for the Goods has been received in full by the Supplier and, subject to the provisions of the PPSA, the Supplier shall be entitled, in addition to the right conferred by clause 5.3(b), to retake possession of all Goods in the possession of the Customer which have been supplied by the Supplier sufficient to clear any outstanding indebtedness by the Customer to the Supplier under the terms of the Agreement, and the Supplier shall not be required to distinguish between Goods which have been paid for and Goods which have not been paid for.
5.3 Subject to the provisions of the PPSA, until the Supplier has received payment in full of the Price for all Goods supplied by the Supplier:
(a) the Customer shall be bailee of the Goods for the Supplier and shall store them upon its premises separately from its own goods and items or those of any other person and shall store them in a manner enabling them to be readily identifiable as Goods of the Supplier;
(b) the Customer grants the Supplier an irrevocable licence to enter the Customer’s premises and retrieve the Goods; and
(c) the Customer shall not sell or dispose of any of the Goods or any interest in the Goods without the prior written consent of the Supplier.
5.4 If the Supplier consents in writing to the sale or disposal of Goods, or if any sale or disposal of Goods is made in breach of clause 5.3 and notwithstanding such breach:
(a) the Customer shall inform any person to whom it proposes to sell or dispose of the Goods or any interest in the Goods (“Acquirer”) of the Supplier’s interest;
(b) the Customer shall ensure that the terms of the sale or disposal of Goods to the Acquirer includes a term which is identical in substance to this clause 5;
(c) notwithstanding that the payment of the Price for the Goods would not otherwise have been due by the Customer, the Customer shall be obliged to pay the Price for the Goods to the Supplier as soon as it receives payment from the Acquirer;
(d) the Customer shall hold all its rights against the Acquirer on trust for the Supplier and, to the extent necessary to discharge all debts owing to the Supplier in respect of the supply of Goods or other Goods only, any proceeds it receives;
(e) the Customer agrees that the Supplier shall be entitled to trace all and any proceeds arising from any sale or disposal of the Goods until the Customer pays the full price for the Goods to the Supplier;
(f) the Customer agrees that the Supplier shall be entitled to trace all and any proceeds arising from any sale or disposal of the Goods until the Customer pays the full Price to the Supplier for all other Goods supplied by the Supplier; and
(g) the Customer shall, at the Supplier’s request, assign its claims against the Acquirer and agrees irrevocably to appoint the Supplier and each of its officers as its attorney to give effect to and complete that assignment.
5.5 Where Goods have become Mixed Goods, the Customer agrees with the Supplier:
(a) that the ownership of the Mixed Goods immediately passes to the Supplier, to the extent necessary to repay all moneys owing to the Supplier and to no greater extent; and
(b) until payment of all sums owing to the Supplier, whether under this Agreement or any other contract, that the Customer shall hold the Goods as a fiduciary for the Supplier.
5.6 For the avoidance of doubt, subject to the PPSA, the ownership of Mixed Goods passes to the Supplier at the beginning of the single operation or event by which the Goods are converted, mixed, commingled or become part of Mixed Goods.
5.7 Where the Customer has not paid the Supplier in the manner required by these Terms:
(a) the Customer agrees with the Supplier to keep Mixed Goods as a fiduciary for the Supplier and, unless otherwise required by the Supplier, to store Mixed Goods in a manner that clearly shows the ownership of the Supplier;
(b) the Customer grants the Supplier a security interest in the Mixed Goods as security for payment of the Goods.
6.1 Any dates for delivery of Goods or Services advised by the Supplier are approximate and are based upon the Customer providing prompt access to any area or equipment requiring the Supplier’s Services and prompt receipt of all the necessary information in respect of the Services required. Where the Customer has failed to properly prepare for the Supplier’s delivery or installation of Goods or performance of Services, the Supplier reserves its rights to charge the Customer a site attendance fee.
6.2 All delivery costs for Goods or Services shall be in addition to the Price unless expressly stated otherwise by the Supplier.
6.3 Unless otherwise agreed, all shipments are made on an ‘Ex Works’ basis (as defined in INCOTERMS 2020 published by the International Chamber of Commerce which may be revised from time to time).
6.4 The Supplier shall not be liable for any delay in delivery of Goods or performance of Services where the delay is caused by a Force Majeure Event. The Supplier shall provide the Customer with written notice of the delay within five (5) business days upon being made aware of a Force Majeure Event (if the Force Majeure Event can reasonably be expected to significantly delay the supply or delivery of Goods or performance of Services by thirty (30) calendar days or more) and such notice shall detail the Supplier’s estimation as to the anticipated duration of the delay.
In the event of a delay under clause 6.4, the date of delivery or performance shall be extended for a period equal to the time lost by reason of the Force Majeure Event.
6.6 The Customer shall not be entitled to a reduction in the Price for Goods or Services subject to an event of delay under clause 6.4, except in the circumstances where the Supplier, as a gesture of goodwill, offers to reduce the Price for the delayed Goods or Services.
6.7 The Supplier shall not be liable to the Customer for any Loss or Consequential Loss claimed by the Customer arising from or in connection with an event of delay under clause 6.4.
7.1 Unless otherwise specified by the Supplier in writing, payment of the Price is to be made by the Customer no later than fourteen (14) days from the date of a tax invoice for the Services and/or Goods issued to the Customer. The Supplier may submit a detailed payment claim at intervals of one (1) month. Each payment claim shall be for Services and Goods provided up to the end of the relevant month.
7.2 At the Supplier’s sole discretion, a deposit or pre-payment of the Price may be required. Where a deposit or pre-payment is required by the Supplier, the Supplier shall not commence the provision of Goods or performance of Services until such time as the deposit or pre-payment is paid by the Customer and the Supplier shall not be liable to the Customer for any Loss incurred in respect of a delay in supplying Goods or performing Services due to the Customer’s failure to promptly make payment of the deposit or pre-payment as directed.
7.3 Time for payment for the Goods and/or Services is of the essence. In the event an invoice is overdue, the Supplier may suspend the provision of Goods and/or Services until payment is made without incurring any liability to the Customer.
7.4 Payment of the Price and any other payment must be made in cleared funds by cash, cheque, bank transfer, credit card, direct debit, or by any other method as agreed between the Customer and the Supplier. Credit Card payments will incur a surcharge.
7.5 In the event of bankruptcy or insolvency of the Customer, or in the event any proceeding is brought against the Customer, voluntarily or involuntarily, under bankruptcy or any insolvency laws, or where the Customer voluntarily resolves to wind up or appoint a liquidator (or similar), or where the Supplier otherwise has reason to believe the Customer is unlikely to pay any amounts owing to the Supplier (or soon to be owing), the Supplier shall be entitled to cancel any Purchase Order outstanding at any time during the period allowed for filing claims against the Customer and shall receive reimbursement for its reasonable and proper cancellation charges.
7.6 The Supplier, at its discretion, may retain possession of Goods repaired, modified, inspected, maintained or serviced under this Agreement until the Price is paid in full. If the Price is not paid within sixty (60) days from the date of the relevant tax invoice, the Supplier may, upon not less than seven (7) days’ written notice by registered mail or email to the Customer, at the Customer’s last known address or email address (as applicable), sell the Goods at public or private sale and apply the net proceeds to the outstanding Price.
7.7 Interest on overdue invoices owed by the Customer accrues from the date when payment becomes due, until the date of payment, at a rate of two percent (2%) per month, calculated daily.
7.8 The Customer indemnifies the Supplier from and against all Loss (including Consequential Loss) incurred by the Supplier in pursuing any sums owed by the Customer to the Supplier, including in respect of debt collection fees and legal fees on an ordinary basis for the recovery (or attempted recovery) of any debt owing to the Supplier by the Customer.
8.1 The Customer consents to the Supplier creating and maintaining a registration on the Personal Property Securities Register (“Register”) in any required form, in relation to any security interest contemplated or created by the Agreement, including a security interest as defined in the PPSA.
8.2 The Customer agrees to sign any necessary documents and provide all reasonable assistance and information to facilitate the registration and maintenance of a security interest on the Register if required by the Supplier. The Supplier reserves the right to register a financing statement or financing change statement in respect of any security interest and the Customer waives the right to receive notice of a verification statement in relation to any registration of a security interest on the Register, by way of clause 8.1 or 8.2, in respect of any Goods supplied.
8.3 The Customer undertakes to do any and all acts that are reasonably required by the Supplier so as to:
(a) allow the Supplier to create and maintain a perfected security interest (including a purchase money security interest) pursuant to the PPSA in respect of any Goods supplied and any and all proceeds of those Goods;
(b) allow the Supplier to register a financing statement or financing change statement;
(c) ensure that the Supplier maintains its secured position under the PPSA;
(d) not register a financing statement or financing change statement without the Supplier’s prior written consent; and
(e) not register or commit to the register of a financial statement or financing change statement in respect of the Goods, in favour of a third party, without the Supplier’s prior written consent.
8.4 The Supplier and Customer agree that no information (as defined in section 275(1) of the PPSA) will be provided to an interested person or person requested by an interested person. This clause 8.4 may be waived by providing prior written notice to the Supplier authorising the disclosure of the above information to a specified party.
8.5 In the event that the Agreement is subject to Chapter 4 of the PPSA:
(a) the Supplier and Customer agree that, pursuant to section 115(1) of the PPSA, the Customer waives sections 95, 96, 118, 121(4), 125, 130, 132(3)(d), 134, 135, 142 and 143 of the PPSA; and
(b) the Supplier and Customer agree that, pursuant to section 115(7) of the PPSA, sections 127, 129(2), 129(3), 130(1), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137 of the PPSA do not apply to the Agreement.
8.6 For the purposes of the PPSA, the Agreement (including clauses 5 and 6 of) is a security agreement. For the avoidance of doubt, collateral, for the purposes of section 20(2) of the PPSA includes but is not limited to; Goods (as described in the Agreement) or Goods provided by the Supplier to the Customer at any subsequent time.
8.7 The Supplier may apply amounts received in connection with the sale of Goods to satisfy obligations secured by security interests contemplated or constituted by the Agreement, at the Supplier’s absolute discretion.
8.8 Despite anything to the contrary contained in these Terms or any other rights which the Supplier may have howsoever:
(a) the Customer charges all of its estate and interest in land, personal property or other property in favour of the Supplier to secure all monetary and other obligations under the Agreement;
(b) the Customer acknowledges and agrees that the Supplier is entitled to register securities for all purposes of clause 8.8(a) (including an absolute caveat) with any applicable security registries, providing that those registered securities must be withdrawn once all payments and other monetary obligations payable under the Agreement have been met;
(c) the Customer irrevocably appoints the Supplier as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 8.
9.1 The Supplier shall, until acceptance of the Goods by the Customer, at its own cost and in a form reasonably acceptable to the Customer, insure the Goods and any materials provided by the Customer to the Supplier pursuant to clause 12 for any loss of or damage to the Goods and/or such materials.
9.2 The Supplier shall have in effect for the duration of the Agreement, the following insurances:
(a) those which the Supplier is required to hold by law; and
(b) Public and Products Liability insurance for an amount of at least $20,000,000.00 in aggregate.
10.1 The Customer acknowledges and agrees that:
(a) the Customer has determined that the Goods are fit for the purpose for which they are required;
(b) the Customer has not relied on the skill and judgement of the Supplier in selecting the Goods;
(c) the Customer has checked the Goods for suitability, functionality, completeness, and compliance with any applicable specifications; and
(d) the Supplier will not be liable for the provision of goods or services other than in respect of those Goods or Services specified on any Purchase Order, invoice, or Quotation, pursuant to which the Supplier has supplied the Goods or Services to the Customer.
10.2 The Supplier warrants to the Customer that:
(a) the Services to be performed under the Agreement will be performed with reasonable care and skill in accordance with any specifications; and
(b) the Goods to be provided under the Agreement will be free from material defects and will be of the kind and quality stipulated in the Agreement (“Warranty”).
10.3 The Warranty shall apply only to defects appearing within twelve (12) months from the date of completion of the Services or provision of the Goods (“Warranty Period”) following which the Customer is deemed to have accepted the Services or Goods, subject to any rights the Customer may have under the Competition and Consumer Act 2010 (Cth) or other applicable Australian consumer protection laws and regulations. The conditions of any tests to Goods or Services provided by the Supplier shall be mutually agreed upon and the Supplier shall be notified of, and may be represented at, all tests that may be made.
10.4 If the Supplier breaches the Warranty, provided the Customer has given the Supplier written notice of such breach within the Warranty Period, the Supplier’s liability is strictly limited to the remedies available under clauses 10.7(a) or 10.7(b), provided that any Goods to be returned are returned to the Supplier at the Customer’s cost.
10.5 The liability of the Supplier for any Loss incurred by the Customer as a result of the Warranty breach (whether the claim is based on contract or negligence) will not under any circumstance exceed the actual cost of correcting the defect in the relevant Services and/or Goods. The foregoing shall constitute the exclusive remedy of the Customer and the exclusive liability of the Supplier.
10.6 Any condition, term, guarantee or warranty which would otherwise be implied in the Agreement is hereby excluded to the full extent permitted by law.
10.7 Notwithstanding the above, where legislation implies in the Agreement any condition, term, guarantee or warranty (“Mandatory Warranty”), and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such Mandatory Warranty, the Mandatory Warranty is deemed to be included in the Agreement. If the Supplier breaches any Mandatory Warranty, the Supplier’s liability is limited, at the absolute discretion of the Supplier, to one or more of the following:
(a) if the breach relates to the Goods:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of such Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(iv) the payment of the cost of having the Goods repaired; and
(b) if the breach relates to the Services:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
10.8 Further to clause 10.7, where the Customer is a ”consumer” (as defined in the Competition and Consumer Act 2010 (Cth) or the Fair Trading Act of any State or Territory in Australia (as applicable)), the Customer may be entitled to a refund of the Price paid for the relevant Goods or Services in the event of a Mandatory Warranty breach. No interest shall be payable by the Supplier on any such refund. Further, if the Customer is deemed to be a “consumer”, the Customer acknowledges and agrees that beyond any Mandatory Warranties the Supplier is obliged to give the Customer, the Supplier provides no other warranty, guarantee or assurance, express or implied, and it is fair and reasonable in all circumstances for the Supplier to do so.
10.9 The Warranty provided by the Supplier shall not apply, and no remedy pursuant to clause 10.7 or clause 10.8 shall be available to the Customer (to the extent permitted by law) in respect of:
(a) any Consequential Loss in respect of any breach of Warranty or defective Goods or Services;
(b) any breaches of the Warranty that have not been reported by the Customer to the Supplier within the Warranty Period;
(c) any claim by a third party against the Customer for Loss;
(d) any failure to or damage of Goods or the Services (including the things or equipment subject to the Services) due to misapplication, abuse, improper installation, appropriation, alteration or tampering with such Goods or Services by the Customer;
(e) the Customer using the Goods, or handling the items or equipment subject to the Services above recommended operational or service levels, rated capacities, or in a manner that is improper or contrary to the ordinary or recommended usage of such items;
(f) the Customer failing to keep the Goods or the items or equipment subject to the Services in good repair, clean, and in accordance with the manufacturer’s or the Supplier’s instructions, or where the Customer has otherwise stored such items incorrectly (including exposure to abnormal temperature conditions, direct sunlight, dirt, moisture, or corrosive materials [and more specifically, in the case of Goods being in the form of doors, where the moisture content of the timber exceeds 18% or falls below 12%]);
(g) (in the case the supply of Goods involves doors, door frames or related products and where the Customer has elected to install the Goods themselves), where the Customer:
(i) has failed to properly install the doors, or in a manner where the doors do not swing freely, or where the manner in which doors with closers or associated hardware are affixed causes undue stress on the doors, closers (or associated hardware);
(ii) has stored, hung or installed the Goods in dry areas or areas which have not been freshly plastered;
(iii) has failed to ensure the structural strength of the Goods has not been impaired by the method of installation or fitting, by reason of hardware, or the cutting or altering of the Goods for fitment of lights, louvre, panels, or for any other reason;
(iv) has failed to apply two (2) coats of paint, varnish or sealant to the top and bottom edges of the Goods after fitting and prior to hanging to prevent undue absorption of moisture;
(v) has failed to apply exterior finishes to Goods in the form of exterior doors;
(vi) has failed to apply light reflective colours to Goods exposed to direct sunlight; or
(vii) has failed to apply a non-high gloss paint to laminated timber solid core doors,
except where the Customer had otherwise requested the Supplier to perform any of those things or tasks captured above at clause 10.9(g) and the Supplier agreed to do such and performed the installation of the Goods, the Warranty and remedies in clauses 10.7 and 10.8 shall apply (as applicable) subject to the remainder of this clause 10.9;
(h) (in the case the supply of Goods involves doors, door frames or related products generally):
(i) a warp (meaning cupping, twisting or distorting of the Goods themselves [not any door jamb or frame to which they are installed] with reference to the application of a straight edge to the concave face of a door, or the application of a door face against a true straight plane surface) not exceeding:
(1) 5 millimetres with respect to doors up to a size of 2,134mm x 914mm x 38mm; and
(2) 6 millimetres with respect to doors exceeding a size of 2,134mm x 914mm x 38mm but not exceeding the dimensions of 2,438mm x 1,219mm x 38mm;
(ii) doors with face veneers of different species of wood or of unbalanced construction;
(iii) external doors which have been painted with dark colours by the Customer;
(iv) doors which are exposed to external conditions without the protection of eaves;
(i) Goods damaged in transit or otherwise where there is no fault on the Supplier’s part for the damage;
(j) the cost of installing, removing, reinstalling, painting or finishing any Goods repaired or replaced by the Supplier (and any other charges to such effect) where such would amount to a betterment of the Goods; and
(k) any expenses incurred by the Customer in independently attempting to repair, rework or make good any defective Goods or failures in respect of Services, except to the extent that such costs were agreed to in writing by the Supplier (at its discretion) as reimbursement in lieu of the Supplier making good the defective Goods pursuant to clause 10.7.
11.1 Under no circumstances whatsoever shall the Supplier be liable to the Customer in respect of any Loss associated with any of the exemptions pursuant to clause 10.9 or in respect of any Consequential Loss generally.
11.2 The Supplier’s liability for or under any claim by the Customer in respect of this Agreement or matters associated with this Agreement is strictly limited to the value of the portion of the Price allocable to the Goods or Services which give rise to such claim, including negligence for any direct Loss arising out of or connected with this Agreement, or from the performance or breach thereof or from the design, manufacture, sale, delivery, resale, installation, technical direction of installation, inspection, repair, test, modification, operation or use of any equipment, material or components covered by or furnished under this Agreement.
11.3 The Customer agrees to indemnify the Supplier from and against:
(a) any Loss (including Consequential Loss) arising from the injury to or death of any person caused by the act, omission, negligence or recklessness of the Customer, the Customer’s employees, servants and agents, and any Loss generally caused whilst the Supplier performs the Services and supplies the Goods (except in respect of any Loss caused by the act, default or negligence on the part of the Supplier); and
(b) any Loss (including Consequential Loss) arising from the injury to or death of any person caused by the act, omission, negligence or recklessness of the Customer, the Customer’s employees, servants and agents, to the extent permitted by law, where the Goods and/or Services were misappropriated, misused, stored or handled in a way contrary to the Supplier’s instructions or reasonably expected ordinary storage and use, or otherwise where due care and skill were not applied.
11.4 The Customer shall assume all risks and liabilities for and in respect of the provision of Goods and/or Services and for injuries to or death of persons and damage to property howsoever arising and the Customer indemnifies the Supplier from and against:
(a) the Loss (including Consequential Loss) of or damage to any Goods for which payment of the Price has not yet been made in full, whether by fire, theft, accident, seizure, confiscation or otherwise whilst in the Customer’s custody, possession or control; and
(b) all other Loss (including Consequential Loss) howsoever arising or incurred, as a result of or in connection with the provision of the Goods and/or Services.
12.1 The Customer shall provide to the Supplier any patterns, designs, specifications, drawings, samples, technical information or otherwise, as specified in the Agreement (whether in electronic format or otherwise), or which the Customer has agreed in writing to provide to enable the Supplier to supply the Goods and/or Services (“Materials”).
12.2 All Materials and the Customer’s Intellectual Property within such Materials (if any), remain the property of the Customer.
12.3 The Supplier will not use the Materials for any purpose other than to the extent required to supply the Goods and/or Services to the Customer.
13.1 Other than as agreed between the Parties:
(a) all Intellectual Property developed by the Supplier in connection with the performance of the Services under the Agreement vests in the Supplier;
(b) the Supplier hereby grants to the Customer a perpetual, non-exclusive, royalty-free, transferable licence to use all Intellectual Property (where owned by the Supplier) which is used by the Supplier in connection with the performance of Services under the Agreement; and
(c) the Customer agrees to enter into and/or execute any document reasonably required to give effect to the provisions of this clause 13.1.
13.2 The Supplier warrants that:
(a) the supply of Services by the Supplier to the Customer and the licence granted by the Supplier pursuant to clause 13.1 does not infringe the Intellectual Property rights of any third party; and
(b) the Services are not subject to any Intellectual Property rights of any third party that in any way restrict the rights of the Customer or its Customers to use or sell the same.
14.1 The Customer may cancel any Purchase Order prior to provision of the Goods and/or Services under that Purchase Order by seven (7) days’ written notice to the Supplier. Regardless of the circumstances, where the Customer cancels a Purchase Order, the Customer will be liable to make payment to the Supplier for any costs reasonably incurred by the Supplier together with such reasonable and proper cancellation charges as are determined by the Supplier, in fulfilling or otherwise preparing to fulfil the Purchase Order. In the event a Customer cancels a Purchase Order concerning custom-made Goods supplied or manufactured by the Supplier in accordance with the Customer’s specifications, if the written notice to cancel the Purchase Order is received after the Supplier has begun fulfilling the Purchase Order, the Supplier reserves its rights to charge the Customer the full Price of the cancelled Purchase Order.
14.2 The Supplier may suspend or terminate the Agreement at any time:
(a) for convenience by giving the Customer thirty (30) days’ written notice to such effect (“Termination Notice”). The Supplier will fulfil any Purchase Orders issued to the Supplier prior to the date of the Termination Notice, unless the Parties agree otherwise. Fulfilment of such Purchase Order(s) shall not effect termination of the Agreement in accordance with this clause 14.2(a). If a Purchase Order is issued to the Supplier after the date of the Termination Notice, but prior to termination of the Agreement, the Supplier may at its discretion elect to accept the Purchase Order;
(b) if the Customer is in default of a material term of the Agreement, by giving fourteen (14) days’ written notice to the Customer and if the Customer fails to remedy such default within fourteen (14) days of written notice from the Supplier or if such default is not capable of remedy;
(c) immediately if the Customer has failed to pay an invoice by its due date; or
(d) immediately if the Customer becomes insolvent, is made bankrupt, is placed into external administration or liquidation or has a receiver or other controller appointed over its assets.
14.3 Termination of the Agreement pursuant to this clause 14 shall be without prejudice to the rights of either party accruing prior to termination.
15.1 If a Dispute arises, either party may by hand, registered post or email, give the other party written notice of the Dispute identifying and providing details and particulars of the Dispute and entitled Dispute Notice (“Dispute Notice”), within fourteen (14) days of the occurrence of the event(s) or circumstance(s) on which the Dispute arises or is based.
15.2 The Supplier shall not be liable to the Customer in respect of any Dispute (including any claim) in connection with the Agreement where clause 15.1 is not complied with.
15.3 Within seven (7) days of receipt of a Dispute Notice, representatives of the Parties having authority to bind the Parties shall confer to seek to resolve the Dispute or agree on a method of doing so and whether that method shall be binding. If a resolution or method of resolution has not been agreed within twenty one (21) days of the service of Dispute Notice, the Dispute shall be referred to mediation. All aspects of such mediation shall be subject to “without prejudice” privilege.
15.4 In the event a Dispute is not resolved between the Parties, reasonable efforts must be made to endeavour to resolve the Dispute through mediation before commencing proceedings in relation to the Dispute. The Customer will be barred from commencing proceedings unless the procedure in clause 15 is strictly complied with. The Supplier is exempt from complying with the mediation requirement where the Dispute concerns non-payment by the Customer for Goods or Services provided by the Supplier.
16.1 The Parties must at all times comply with all applicable laws relating to anti-bribery, improper payments, anti-money laundering, and modern slavery, including but not limited to the Criminal Code Act 1995 (Cth), the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Anti-Money Laundering and Counter-Terrorism Financing Rules 2007 (Cth), and the Modern Slavery Act 2018 (Cth).
17.1 If any provision or part of any provision of the Agreement is unenforceable, such unenforceability shall not affect other parts of such provision or any other provision of the Agreement.
17.2 The Supplier may alter, amend, revise or change any terms of the Agreement with written notice given to the Customer of any such alteration, amendment, revision or change. The Agreement (as amended from time to time) shall apply to all Services performed and all Goods supplied by the Supplier for the Customer and shall comprise the entire agreement between the Parties, notwithstanding any other terms and conditions which may be supplied by the Customer.
17.3 Any waiver by the Customer of strict compliance with any provision of the Agreement shall not be effective unless in writing and signed by an authorised officer of the Customer.
17.4 Written notice for the purposes of these Terms means notice given by an authorised representative of the party giving notice, given to the receiving party by hand, registered post or mail, or by email.
17.5 The Agreement shall be governed by and construed in accordance with the laws in force in New South Wales, Australia, and the Parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.
17.6 No provision of the Agreement shall be construed adversely against one party solely on the basis that that party was responsible for the drafting of that provision.
18.1 This clause 18 shall only apply to Goods in the form of manual and counterweight driven doors supplied and installed by the Supplier.
18.2 At the time of installation of the Goods, the Supplier shall provide the Customer with:
(a) instructions on how to effectively operate the Goods;
(b) instructions on how to effectively maintain the Goods; and
(c) the manufacturer’s Operating Manual (if available).
18.3 The Customer agrees that if it re-sells the Goods, the Customer will provide to the party to whom it re-sells the Goods, any document provided to it by the Supplier in accordance with clause 18.2 above.
19.1 Clauses 8, 9, 10, 11, 12, 14, 15, 16 and 18 survive the termination of this Standard Terms and Conditions of Sale/Supply of Goods and/or Services.
20.1 In these Terms:
(a) “Agreement” means the agreement between the Supplier and the Customer for the provision of Goods or Services comprising of:
(i) the applicable Purchase Order (or other document or correspondence captured by clause 1.4);
(ii) these terms and conditions; and
(iii) any Quotation or tax invoice issued by the Supplier.
(b) “Consequential Loss” means any indirect, special or consequential loss, including (without limitation);
(i) exemplary, punitive, aggravated or nominal damages;
(ii) loss of profit or anticipated profit, loss of revenue, loss of time, loss of goodwill, loss of contract, loss of business or business opportunity, loss of financial opportunity, loss of use (including loss of use of equipment or associated equipment, loss of facilities or services, and downtime costs), loss of production, loss of investment return, or loss of income, whether the loss is direct or indirect;
(iii) increase in direct or indirect financing costs, or failure to realise anticipated savings; or
(iv) any loss, damage, cost, expense or liability that is not fairly and reasonably:
(1) considered to arise naturally (being according to the usual course of things) from a breach of this Agreement or relevant matter; or
(2) contemplated by the Supplier and the Customer as at the date of this Agreement as the probable result of a breach or relevant matter,
whether present or future, fixed or unascertained, actual or contingent.
(c) “COVID-19 Event” means any of the events set out below that specifically relate to the COVID-19 coronavirus global pandemic (including related epidemic, pandemic or disease outbreak) which have the effect of delaying and/or preventing the Supplier from performing its obligations under the Agreement:
(i) the act of any government or authority;
(ii) the declaration of a state of emergency, or the invocation of lockdown or martial law having an effect on commerce generally; and
(iii) any other cause, impediment or circumstance beyond the reasonable control of any party within the Supplier’s supply chain whose consequences could not be avoided under this Contract.
(d) “Customer” means the Customer (or any person acting on behalf of and with the authority of the customer) as described on any Purchase Order, Quotation or Invoice, including their successors or permitted assigns.
(e) “Dispute” means a dispute between the Parties which has arisen in connection with the subject matter or interpretation of the Agreement, including a dispute concerning a claim in tort, contract, under statute, or on any other basis in law or equity available under the law governing the Agreement.
(f) “Force Majeure Event” means any:
(i) causes beyond the Supplier’s reasonable control;
(ii) acts of God, acts of the Customer, acts of civil or military authority, priorities, fire, strikes or other labour disturbances, floods, cyclones, war, riots, invasions, hostility between nations, civil insurrection, military coup or act of a foreign enemy, delays in transport or car shortages, epidemic, pandemic or quarantine;
(iii) causes beyond the Supplier’s reasonable control resulting in it being unable to obtain necessary labour, drawings, materials, components or manufacturing facilities;
(iv) COVID-19 Event.
(g) “Goods” means goods, materials, parts or products sold or supplied by the Supplier, as described in a Purchase Order, Quotation or invoice.
(h) “GST” means the Goods and Services Tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related act and/or regulations.
(i) “Intellectual Property” means any intellectual or industrial property whether protected by statute, at common law, or in equity, including any trade mark, patent, invention, copyright, or design right (whether or not registrable), in any design, specification, process, technique, software, know how, trade secret, technical information, financial information, business method and confidential information.
(j) “Loss” means any loss, liability, damage (including but not limited to any damages or compensation and/or any damage to reputation and damage to property), cost, expense (including legal costs on a full indemnity basis), claim, action or proceeding of whatever kind and however it arises.
(k) “Mixed Goods” means where:
(i) the Customer makes a new object from the Goods, whether finished or not; or
(ii) the Customer mixes or otherwise comingles the Goods with other articles, goods or products; or
(iii) the Goods become part of another product.
(l) “Operating Manual” means the manual provided to the Customer in accordance with clause 18, if applicable.
(m) “PPSA” means the Personal Property Securities Act 2009 (Cth) as may be amended or replaced from time to time.
(n) “Price” means the price payable for the Services and/or Goods in accordance with clause 3.1.
(o) “Purchase Order” means any purchase order, work order, work authorisation or any other form requesting for the supply of Goods and/or Services from the Supplier (whether oral or written).
(p) “Quotation” means any quotation provided by the Supplier to the Customer in respect of a Purchase Order.
(q) “Parties” means the Customer and Supplier.
(r) “Related Bodies Corporate” is defined in section 9 of the Corporations Act 2001 (Cth) as may be amended or replaced from time to time.
(s) “Services” means all services or described in a Purchase Order or Quotation.
(t) “Supplier” means ARA Manufacture Pty Ltd ABN 61 096 667 588 and its Related Bodies Corporate.
(u) “Terms” means these Standard Terms and Conditions of Sale/Supply of Goods and/or Services as amended from time to time.