PART 1: GENERAL TERMS AND CONDITIONS
- Structure of these terms and conditions
- These terms and conditions consist of a number of parts as follows:
- This Part 1 “General Terms and Conditions”: applies to all Goods and Services provided by us to you, including where we sell and you purchase Goods from us.
- The Part 2 “Special Terms: Hire of Goods”: only applies if and when we hire Goods to you from time to time.
Therefore if you do not use the class of goods or services as set out in Part 2, then those Special Terms will not be applicable. If you, at any stage, use the class of goods or services as set out in Part 2, then the relevant Special Terms will automatically apply to the relevant goods or services provided by us.
- In the event of any inconsistency between the provisions contained in this Part 1 and the provisions contained in the Special Terms, the provisions contained in the Special Terms will prevail.
- The terms and conditions contained with any commercial credit application you sign with us are deemed to be incorporated in these terms and conditions.
- These terms and conditions will not apply if we enter into a contract with you for a specific project for a specific site with respect to the provision of our Goods and Services (Project Terms). Therefore the Project Terms will apply with respect to that specific project and these terms and conditions will apply where our Goods and Services are used by you for works which do not come under the Project Terms.
- Definitions and interpretation
For the purpose of these terms and conditions:
A reference to “we” or “us” or “our” is a reference to Meet PAT Pty Ltd (ABN 48 163 544 278) its related parties, successors and assigns.
A reference to “you” or “your” is a reference to the person or entity that acquires our Goods and Services, including as described on any quotation, authorisation, or as identified in the cover page of a credit application or other form or document as provided by us to you, including any person acting on behalf of and with your authority.
Authority means any federal, state or local government, department of any federal, state or local government, any court or administrative tribunal or statutory corporation or regulatory body.
Business Day means a day other than a Saturday, Sunday or a public holiday in New South Wales.
Consequential Loss means any loss or damage arising from a breach of contract or agreement (including breach of these terms and conditions), tort, or any other basis in law or equity including, but without limitation to, loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of access to markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, or any similar loss whether or not contemplated by the parties at the time of entering into these terms and conditions.
Delivery has the meaning ascribed to that term in clause 5.1.
Force Majeure Event means any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic, epidemic, Government order or other event beyond our reasonable control.
Goods means all goods supplied by us to you (and where the context so permits will include any supply of Services as hereinafter defined) and are as described on the invoices, quotations, authorisations or any other form or document as provided by us to you.
GST means the goods and services tax imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
IP Rights means all intellectual property rights conferred by law on us with respect to our business and Goods and Services, including patents, trademarks, designs, plans, specifications, formulas, trade names, websites, product concepts, plans, copyright or any other intellectual property right.
PPSA means the Personal Property Securities Act 2009 (Cth).
Price means all monies payable by you to us in accordance with these terms and conditions (including with respect to the Goods and/or the Services).
Services means any services supplied by us to you, and includes any advice or recommendations relating the provision of such services.
Special Terms means Part 2 of these terms and conditions.
The following interpretational rules apply to these terms and conditions:
- The word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association or any government agency.
- The words “include”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.
- Time is a reference to the time in the State or Territory in which we provide you with our Goods and/or Services.
- Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of these terms and conditions.
- A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these terms and conditions or any part of it.
- Any instructions received by us for the supply of Goods and/or Services and:
- your acceptance of Goods and/or Services supplied; or
- your acceptance (whether express or implied) these terms and conditions,
(whichever occurs first) will constitute acceptance of the terms and conditions set out in these terms and conditions.
- For the avoidance of any doubt, any quotation issued by us is not an offer to sell and no order given in pursuance of any quotation will bind us unless and until such order is accepted by us in our absolute discretion.
- Where more than one (1) party has entered into these terms and conditions with us, all parties will be jointly and severally liable.
- Upon acceptance of these terms and conditions, these terms and conditions will be legally binding and can only be amended with our written consent. You waive any right you may have to assert that the fact that you indicating your acceptance of these terms and conditions electronically does not constitute actual acceptance.
- Goods and Services are supplied by us only on the terms and conditions set out in these terms and conditions to the exclusion of anything to the contrary in the terms of your order notwithstanding that any such order is placed on terms that purport to override any provision of these terms and conditions.
- It is your sole responsibility to:
- obtain any approvals, licences or permits necessary for you to perform your obligations under these terms and conditions, comply with any laws and to use any Goods; and
- at all times comply with any and all laws in connection with your use of the Goods and/or our Services.
- Price and payment
- Subject to clause 2, the Price will be:
- as indicated on invoices provided by us in respect of Goods and/or Services supplied;
- our current price at the date of Delivery of the Goods or completion of the Services according to our current Price list (if any); or
- our quoted Price as set out in any documents provided by us to you.
Where there is any discrepancy, the document as advised by us will prevail to the extent of any inconsistency.
- We reserve the right to withdraw any quotation at any time or change the Price in the event of a variation which may arise due to, but is in no way limited to, the application of:
- additional rates and charges that may apply to the supply of the Goods and/or Services and which are disclosed to you in writing prior to or at the time that you provide instructions for the supply of Goods and/or Services;
- an increase as a consequence of variations in foreign currency rates of exchange and/or freight and insurance charges;
- additional services required due to hidden or unidentifiable difficulties beyond our control;
- new or amended laws;
- increases in the cost of materials and/or labour; and
- any other cause beyond our direct control,
and such variation will be shown as variations on an invoice. Payment for all variations must be made in full on the due date of the relevant invoice.
- At our sole discretion and as notified by us to you, a non-refundable deposit may be required prior to us supplying any Goods and/or Services under these terms and conditions.
- Time for payment of the Price will be of the essence and will be stated on the invoice issued by us. If no time is stated on an invoice issued by us, then payment will be due prior to us despatching the Goods or providing the Services.
- If you do not pay an invoice in full by the due date, we may charge the following:
- interest, accrued and calculated monthly from the date when payment becomes due until the date of payment, on the total outstanding balance of the invoice at a rate of 10% per annum; and
- any costs and expenses incurred by us in recovering any unpaid amounts owed by you.
- We will be under no obligation to provide or release any Goods or Supplied Items and/or provide any Services, unless all amounts owed by you are paid to us.
- Payment must be made by cash, by cheque, or by credit, or by direct credit, or by any other method as agreed to between you and us. Some payment methods may be subject to administration fees, processing fees and surcharges and such fees and such charges will be disclosed to you as applicable and from time to time. In the event that your payment is dishonoured for any reason you will be liable for any dishonour fees incurred by us.
- Unless otherwise expressly stated, GST, delivery costs and other taxes and duties that may be applicable will be added to the Price.
- You are not entitled to deduct, counterclaim or set off against any sums owed by you to us at any time.
- Delivery of Goods
- Delivery of Goods will be deemed to have taken place upon the earlier of:
- you taking possession of the Goods at our premises;
- if we are responsible for the delivery of the Goods, once those Goods are delivered to your nominated address; or
- if a carrier is engaged and takes possession of the Goods from our premises for delivery to your nominated address, at the time the carrier takes possession of the Goods at our premises, in which event the carrier will be deemed to be your agent. This also applies where Goods are posted by us, that is, risk in the Goods passes to you once we have posted the Goods and delivery will be deemed to have occurred at the time we post the Goods.
- The costs of Delivery are your responsibility and if we incur the costs of Delivery, those costs are in addition to the Price.
- You are responsible for returning or re-delivering Goods to us at your cost for any reason under and in accordance with the terms of these terms and conditions, unless we otherwise agree in writing that it is not your responsibility (in which case we will incur the cost). If you require us to collect Goods from you for return, you will be liable for the costs we incur in that respect, unless we otherwise agree.
- You must make all arrangements necessary to take Delivery of the Goods whenever they are tendered for Delivery, at your cost. This includes, but is not limited to:
- ensuring that Delivery is taken safely and without risk to persons or property; and
- you being solely responsible for the unloading the Goods.
- In the event that you are unable to take Delivery of the Goods as arranged, then we will be entitled to recover from you reasonable fees and charges incurred by us at our discretion, including but not limited to, additional delivery and waiting fees, re-delivery fees and storage charges.
- Delivery of the Goods to a third party nominated by you is deemed to be Delivery to you for the purposes of these terms and conditions.
- We may deliver the Goods by separate instalments. Each separate instalment must be invoiced and paid in accordance with the provisions in these terms and conditions.
- Our failure, or delay in delivering Goods will not constitute a breach of these terms and conditions by us and will not entitle either party to treat these terms and conditions as repudiated or otherwise entitle you to make a claim (of any nature) against us.
- Any times or dates quoted for Delivery of Goods is an estimate only and we do not guarantee Delivery by quoted times and dates.
- We will not be liable for any loss or damage whatsoever due to failure by us to deliver the Goods (or any of them) promptly or at all, including but not limited to, due to circumstances beyond our control or a Force Majeure Event.
- Risk and insurance
- All risk in the Goods passes to you on Delivery.
- All risk in the Supplied Items at all times remains with you, including when the Supplied Items are in our possession and control. We will not be liable for any damage, loss or claim in relation to the Supplied Items, unless that damage, loss or claim is directly due to our negligent act or omission.
- It is your responsibility to effect carrier/freight insurance and insurance with respect to the Goods when they are collected from our premises either by you or a carrier.
- Where the Goods are delivered to an unattended location at your direction, then such Goods will be left at your sole risk and it will be your responsibility to ensure the Goods are insured adequately or at all.
- If any of the Goods are damaged or destroyed following collection from our premises, we are entitled to receive all insurance proceeds up to the amount of the monies payable by you for the Goods. The production of these terms and conditions by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.
- In the circumstance where you are purchasing Goods from us, ownership of Goods will not pass until:
- you have paid us all amounts owing for the particular Goods (and, if applicable, any Services related to those Goods); and
- you have met all other obligations due to us in respect of all contracts between us.
- It is further agreed that:
- where practicable the Goods must be kept separate and identifiable until we have received payment and all other of your obligations are met;
- until such time as ownership of the Goods passes from us to you in accordance with these terms and conditions, we may at any time prior give notice in writing to you to return the Goods or any of them to us as a result of the breach of these terms and conditions by you. Upon such notice your rights to obtain ownership or any other interest in the Goods will cease;
- we will have the right of stopping the Goods in transit whether or not Delivery has been made if you are in default under these terms and conditions;
- if you fail to return the Goods to us then we or our agent may (as your invitee) enter upon and onto land and premises owned, occupied or used by you, or any premises where the Goods are situated and take possession of the Goods and you grant irrevocable authority to do so;
- you are only a bailee of the Goods and until such time as we have received payment in full for the Goods then you hold any proceeds from the sale or disposal of the Goods, up to and including the amount you owe to us for the Goods, on trust for us. You must not deal with our money in any way which may be adverse to us;
- if the Goods are affixed to other materials, the totality thereof will be the sole and exclusive property of us until payment has been made in full, unless the other materials or part thereof are or is the property of a party or parties other than you in which case the totality thereof will be deemed to be owned as tenants in common with such other party or parties in shares corresponding to the respective amounts paid or payable by you in respect of such other party or parties;
- you must not charge, or grant a security interest over, the Goods in any way whilst they remain our property; and
- we may commence proceedings to recover the Price notwithstanding that ownership of the Goods may not have passed to you.
- Personal Property Securities Act 2009 (“PPSA”)
- In this clause:
- the terms ‘attachment’, ‘financing statement’, ‘financing change statement’, ‘purchase money security interest’ and ‘security interest’ have the meaning given to it by the PPSA; and
- the term ‘security agreement’ means the security agreement under the PPSA created between you and us pursuant to these terms and conditions.
- You acknowledge and agree that these terms and conditions:
- constitutes a security agreement for the purposes of the PPSA; and
- creates a security interest in:
- all Goods previously supplied by us to you (if any); and
- all Goods that will be supplied in the future by us to you,
including, without limitation, a purchase money security interest over the Goods and that the attachment of the security interest over the Goods has in no way been deferred or postponed.
- You undertake to:
- promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which we may reasonably require to:
- register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- register any other document required to be registered by the PPSA; or
- correct a defect in a statement referred to in clause 3(a)(i) or 8.3(a)(ii);
- indemnify, and upon demand reimburse, us for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
- not register a financing change statement in respect of a security interest without our prior written consent;
- not to do anything that results in us having less than the security or priority granted by the PPSA that we assumed at the time of that perfection;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without our prior written consent; and
- immediately advise us of any material change in your business practices if you sell the Goods which would result in a change in the nature of proceeds derived from such sales.
- The parties agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
- You hereby waive your rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. You waive your rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- Unless we otherwise agree in writing, you waive your right to receive a verification statement in accordance with section 157 of the PPSA.
- You must unconditionally ratify any action taken by us under this clause in relation to the enforcement of the security interest.
- Storage charges
- If you fail to collect Goods or accept Delivery of the Goods (Relevant Items) within fourteen (14) days of us providing you with notice to do so, then the Relevant Items may be warehoused or otherwise held at any place or places at our sole discretion at your expense and which will be payable by you at the rate equivalent to 20% per annum calculated daily on the Price of the Relevant Items until you comply with all of our requirements and conditions.
- If you fail to collect the Relevant Items by the time referred to in clause 1, then without limiting our right to charge reasonable storage fees, we (at our absolute discretion) may dispose of the Relevant Items, including by sale or otherwise without any further notice to you. You:
- cannot make any claim against us if we elect to exercise our rights under the preceding sentence; and
- must reimburse and indemnify us for all costs or claims incurred by us in connection with us exercising our rights under this clause.
- In addition to any right of lien to which we may by law be entitled, we are entitled to a general lien on all Relevant Items in our possession for the unpaid price of any Goods and/or Services under these terms and conditions.
- Access rights and obligations
- This clause 10 applies where you have requested us to access your nominated premises for the purpose of undertaking any work in connection with our Goods and Services, including installation works (Commissioned Work).
- In respect of any Commissioned Work, it is your responsibility and duty to ensure that the conditions under which the Commissioned Work is to be performed, the layout, means of access, accessibility of the different parts of the subject matter being worked on or handled and other material circumstances are suitable to, and safe for, us (including our workers). We will be entitled to charge additional fees if you fail to comply with the preceding sentence.
- You grant permission to us and our workers to enter, at any time, any premises where the Commissioned Work is required to be undertaken, including for the purpose of pre-inspecting the premises prior to any installation of Goods. You agree to have a representative present at the premises for such Commissioned Works as reasonably required by us (including our workers).
- You warrant to us that you have obtained all necessary authorisations, licences and approvals to allow the Commissioned Works to be performed.
- Product warranty policy
- We warrant that new Goods purchased either from us direct or through authorised distributors, which are still in the possession of the initial purchaser, will be free from defects for the Warranty Period, subject to the terms of this clause 11.
- Subject to the remaining provisions of this clause 11, Goods may be defective if we find that it is non-conforming in material or workmanship and if the non-conformance materially impairs the performance of the product having regard to the purpose for which it was designed (Defective Product).
- We will, in our absolute discretion, either repair or replace the Defective Product, or provide you with a refund of the amount paid by you for the Defective Product.
- The following Warranty Period applies to our products and commences on the date of despatch of the product from factory:
Products and applicable warranty period
- Permanent Water Stations – Three (3) Years.
- Portable Water Stations – One (1) Year.
- Special Products – One (1) Year
- Service parts used in repairs pursuant to this Defects Warranty Policy carry the remaining balance of the repaired product or one (1) year, whichever is greater.
Limited coverage warranty items
- For some special parts or components within a water station, warranty conditions are as below for complete list please see below:
- Batteries – One (1) Year
- LoraWAN Electronic Monitoring Equipment – One (1) Year
- Water Filters – One (1) Year
- Chiller/Water Cooler Systems – MC-INT Units – One (1) Year.
- The product warranty set out in this clause 11 will not cover products that:
- are used outside of our recommended working minimum and maximum temperature ranges;
- include customer-specified materials or finishes that are not part of our standard product range at the time of manufacture;
- are not installed and maintained as recommended in our installation and maintenance guidelines;
- are installed or operated outside of the minimum/maximum supply line pressure as indicated in the supporting instruction books. Any damage caused by reason of connecting a water cooler, bottle filler, fountain or packaged water cooler to supply line pressures outside of the working pressure is not covered by this warranty;
- have not been used in accordance with any applicable usage guidelines;
- have been misused or used is in excess of normal wear and tear;
- have been damaged for example as a result of collision, theft or vandalism; and/or
- are manufactured by a third-party supplier and then resold by us without incorporating any of our manufactured product into the third party product.
- Finishes and components on our products are updated periodically to respond to the demands and changing preferences of our customers. As a result we may discontinue some options before expiration of the applicable Warranty Period and do not guarantee that any replacement product or part will be identical to, or match the finish of, the original.
- Any imperfections in finishes or in natural materials used should not be considered as faults but a typical characteristic of these crafted products.
- In the case of products requiring only minor rectification under warranty, we reserve the right to supply on a “parts only” basis to you where appropriate. Parts may include: battens, fixings, valves etc.
How to make a warranty claim
- Please send written notice of the defective product including the date of purchase, product details and the nature of any defect to:
Meet PAT Pty Ltd
278 Townsend Street
Albury, NSW, 2640, Australia
Phone: +61 (0)2 6021 0300
Email: [email protected]
- Cleaning, maintenance and filtration
- We do provide cleaning and maintenance services for a fee, advice and guidelines to keep the equipment in the best possible condition.
- It is ultimately your responsibility to keep the Goods in a hygienic, clean and safe working order. We will not be responsible for any loss of business, profit, earnings or takings or out of pocket expenses or disbursements whatsoever arising out of your failure to maintain the Goods. Your failure to clean, maintain, or store the Goods as specified by us may void the product warranty.
- If any filtration equipment is provided with the Goods, we will not be responsible for any loss of business, profit, earnings or takings or out of pocket expenses or disbursements whatsoever arising out of the drinking water quality delivered from the Goods. We deliver the Goods cleaned to the highest standard to ensure no contaminants are in the water lines or filtration system. It is your responsibility to regularly maintain, replace and test the filtration system as recommended by us. It is also your responsibility to test the quality of the water delivered to and from the Goods.
- Limitation of liability
- To the fullest extent permitted by law, our liability for any breach of these terms and conditions arising as a result of our negligence or for breach of any conditions or warranty implied in these terms and conditions or by law is limited to one (1) of the following at our option:
- In the case of Goods – the replacement of the Goods or the supply of equivalent Goods limited to the initial invoice value; the repair of the Goods; the payment of the costs of replacing the Goods or of acquiring equivalent Goods; or the payment of the cost of having the Goods repaired.
- In the case of Services – the supplying of the services again or the payment of the cost of having the services supplied again.
- To the extent that the limitations of liability in these terms and conditions do not apply, and to the extent permitted by law, our total aggregate liability in respect of any other claim by you or a third party in connection with these terms and conditions will be limited to damages which under no circumstances must exceed the Price of the relevant Goods and/or Services.
- To the full extent permitted by law, all warranties (other than those expressly set out in these terms and conditions) or liabilities imposed or implied whether by law or by statute are expressly excluded.
- You assume all risk and liability resulting from the use of the Goods and/or the Services either alone or in conjunction with other goods or materials even if we had or should have had prior knowledge of use to which the Goods and/or Services would be put.
- You must inspect the Services on completion or Goods on Delivery and must within the time specified in the relevant Special Terms to these terms and conditions (and if not specified in the Special Terms, then within seven (7) days of Delivery) (time being of the essence) notify us in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description, specification or quote.
- You must afford us an opportunity to inspect the Goods or Services (as the case may be) within a reasonable time following notification under clause 5 if you believe the Services or Goods (as the case may be) are defective in any way. If you fail to comply with these provisions the Services and/or the Goods will be deemed to be free from any defect or damage.
- Within a reasonable time after inspection of the Goods and/or Services by us, we will make a written determination as to the outcome of the inspection and will inform you of the outcome.
- Nothing in these terms and conditions excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any Law which cannot lawfully be excluded or limited.
- We acknowledge that the Goods and Services may come with guarantees that cannot be excluded under the Australian Consumer Law. If so (and if the Australian Consumer Law applies to you as a consumer):
- with respect to Goods, you are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. However, where Goods are defective due to your requirements or specifications, we will not be liable; and
- with respect to Services, for major failures you are entitled to cancel your service contract with us and to a refund for the unused portion, or to compensation for its reduced value as well as for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
- To the fullest extent permitted by law, we are under no obligation to accept any returns, including for change of mind or the Goods and/or the Services not being fit for the purpose or use as intended by you. In that respect, you acknowledge and agree that you have made your own enquiries and undertaken your own due diligence with respect to the Goods and/or Services provided by us and satisfied yourself in that regard.
- Default and consequences of default
- If you:
- default in payment of any invoice when due;
- default in the performance of any obligation imposed on you under these terms and conditions; and/or
- breach any warranty or representation contained in these terms and conditions,
you indemnify us from and against all liability, claims, losses, damages, costs and fines and disbursements incurred by us in connection with that default (including, without limitation, pursuing the debt including legal costs on a solicitor and own client basis and our collection agency costs). For the avoidance of doubt, we do not have to incur an expense or cost before claiming the benefit of the indemnity provided under this clause.
- Without prejudice to any other remedies we may have, if at any time you are in breach of any obligation (including those relating to payment) we may:
- suspend or terminate the supply of Goods and/or the Services to you and any of our other obligations under these terms and conditions. We will not be liable to you for any loss or damage you suffer because we have exercised our rights under this clause;
- preclude you from participating in any special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs (if any); and
- where applicable, terminate your credit account and require the payment of cash prior to or upon Delivery for any further Goods and/or Services.
- Without prejudice to our other remedies at law, we will be entitled to cancel all or any part of any order of yours which remains unfulfilled and all amounts owing to us will, whether or not due for payment, become immediately payable in the event that:
- any money payable to us becomes overdue, or in our opinion, you will be unable to meet your payments as they fall due; or
- you become insolvent, convene a meeting with your creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of your creditors; or
- a receiver, manager, administrator, liquidator (provisional or otherwise), trustee in bankruptcy or similar person is appointed in respect of you or any asset of yours.
- Cancellation, variations and delays
- We may terminate these terms and conditions or cancel Delivery of Goods and/or Services at any time before the Goods are completed or the Services are delivered by giving you written notice if:
- you are in default under clause 1, in which case all costs incurred by us in that respect will be immediately due and payable by you; or
- we are of the opinion that we cannot fulfil the relevant order, in which case we will provide a refund of the monies paid by you in connection with that order, and for the avoidance of doubt no further monies will be refunded on any account.
- If you cancel or alter an order for Goods and/or Services, or any part of an order, then without prejudice to any other rights we have against you, we may charge you any costs incurred by us in fulfilling the order, including materials already acquired for the order together with the cost of any labour and tooling and losses incurred by us in reselling or otherwise disposing of the relevant items.
- Whilst we will take all reasonable measures to ensure that orders are completed by the agreed time, you cannot make any claim (of any nature) as a result of:
- any delays in us completing the order whether within our control or otherwise; or
- the non-availability of any Goods and consequently our refusal or failure to provide those Goods to you.
- Intellectual property
- We are not liable to you for any infringement or unauthorised use of any IP Rights arising out of performance of these terms and conditions. If any dispute or claim arises with respect to any such matter then we may terminate these terms and conditions by notice to you without any liability on our part.
- All IP Rights in connection with the provision of the Goods and/or the Services, always remains our sole property. You must not do anything which adversely affects our ownership of those IP Rights, or otherwise assert an interest in our IP Rights.
- You undertake not to utilise, copy, reproduce or disclose or permit others to utilise, copy, reproduce or disclose any such IP Rights without our prior written consent.
- You agree and consent for us to obtain from a credit reporting agency a credit report containing personal credit information about you in relation to credit provided by us.
- You agree that we may exchange information about you with those credit providers either named as trade referees by you or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- to assess an application by you;
- to notify other credit providers of a default by you;
- to exchange information with other credit providers as to the status of this credit account, where you are in default with other credit providers; and/or
- to assess your creditworthiness.
You understand that the information exchanged can include anything about your creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988 (Cth).
- You consent to us being given a consumer credit report to collect overdue payment on commercial credit.
- You agree that personal credit information provided may be used and retained by us for the following purposes (and for other purposes as agreed between you and us as required by law from time to time):
- the provision of Goods and/or Services;
- the marketing of Goods and/or Services by us, our agents or distributors;
- analysing, verifying and/or checking your credit, payment and/or status in relation to the provision of Goods and/or Services;
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by you; and/or
- enabling the daily operation of your account and/or the collection of amounts outstanding in your account in relation to the Goods and/or Services.
- We may give information about you to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about you; and/or
- allow the credit reporting agency to create or maintain a credit information file containing information about you.
- The information given to the credit reporting agency may include:
- personal particulars (your name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
- details concerning your application for credit or commercial credit and the amount requested;
- advice that we are a current credit provider to you;
- advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
- that your overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
- information that, in our opinion, you have committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with your credit obligations);
- advice that a cheque drawn by the have been dishonoured more than once; and/or
- that credit provided to you by us has been paid or otherwise discharged.
- Without restriction, we may provide any personal information, credit reports and any other information relating to you to any insurer of ours and you irrevocably consent to the disclosure of such information.
- Force Majeure
If a Force Majeure Event occurs:
- we are not liable for any failure or delay in performing our obligations imposed on us under these terms and conditions; and
- our obligations under these terms and conditions are suspended, to the extent to which they are affected by, and for the duration of, the Force Majeure Event.
- This clause applies if you are a trustee of a trust.
- You agree that even though you enter into this contact with us as trustee of the trust, you will also be liable personally for the performance and observance of every covenant to be observed and performed by you expressed or implied in these terms and conditions.
- You warrant your complete, valid and unfettered power to enter into these terms and conditions.
- General provisions
- Any notice or communication under these terms and conditions must be in writing and delivered to a party’s last notified principal place of business or email address. A notice will be treated as having been given on:
- if delivered to the principal place of business:
- the day of delivery if a Business Day, otherwise on the next Business Day; or
- if sent via pre-paid mail, on the third Business Day after posting; and
- if transmitted by email, on the day of transmission if a Business Day, otherwise on the next Business Day.
- Each order that you place is, a representation by you made at the time that you are, and will remain in the future, solvent and able to pay all of your debts as and when they fall due.
- If any provision of these terms and conditions is held to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
- These terms and conditions will be governed by the laws of New South Wales, Australia and are subject to the exclusive jurisdiction of the courts of New South Wales. The parties may not seek to have any proceedings removed from the jurisdiction of New South Wales on the grounds of forum non conveniens.
- We will not be under any liability whatsoever to you for any Consequential Loss.
- We may license or sub-contract all or any part of our rights and obligations without your consent. In addition, we may assign or novate any or all of our rights and obligations under these terms and conditions to a third party by providing you with notice.
- You agree that we may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which we notify you of such change. Except where we supply further Goods and/or Services to you and you accept such Goods or Services, you will be under no obligation to accept such changes with respect to those Goods and/or Services already supplied.
- No modification amendments or other variation of these terms and conditions will be valid and binding on us unless made in writing and duly executed by and on our behalf.
- Each party must keep these terms and conditions and related information confidential, except to the extent it is in the public domain through no fault of a party or if required to be disclosed by law.
- Our failure to enforce any provision of this contact will not be treated as a waiver of that provision, nor will it affect our right to subsequently enforce that provision.
- You acknowledge that we not have made any representation or other inducement to you to enter into these terms and conditions and you have not entered into these terms and conditions in reliance on any representations or inducements except for those representations contained in these terms and conditions.
- If any part of these terms and conditions become void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
PART 2 – SPECIAL TERMS: HIRE OF GOODS
For the purpose of this Part 2, unless otherwise defined in this Part 2, capitalised words have the same meaning ascribed to them in Part 1 “General Terms and Conditions” of these terms and conditions.
- Terms of supply
- Our hire of the Goods to you are governed by the following documents (in order of precedence):
- Any agreement/hire schedule provided to you by us with respect to the Goods, including any conditions contained in that schedule.
- This Part 2 “Special Terms: Hire of Goods”.
- Part 1 “General Terms and Conditions”.
- In the event of any inconsistency between the above documents, the documents will prevail to the extent of that inconsistency in the order set out in clause 1.
- Our commitment to you
- We will provide the Goods to you in good working order.
- You are (as hirer) permitted to exclusively use the Goods during the Hire Period. Notwithstanding the preceding sentence, we reserve the right to replace the Goods hired to you at any time.
- Hire Period
- The Hire Period for the Goods:
- commences when you take Delivery of the Goods; and
- ends on the earlier of:
- two (2) years less one day from the commencement date;
- an agreed date between you and us;
- the Goods being returned into our possession and control;
- the expiry of the period referred to in clause 5.
- The Hire Period is continuous and includes all times when the Goods are in your possession and control, including weekends and public holidays.
- If a minimum hire period applies to the Goods and you return the Goods to us prior to the end of the minimum hire period, you will be required to pay the full Price payable for the entire minimum hire period.
- You must notify us in writing when the Goods are available to be returned to us at the end of the Hire Period.
- We may terminate the contract and/or any Hire Period for any Goods under these terms and conditions (with or without providing reasons) at our absolute discretion by providing you with twenty-four (24) hours written notice. You cannot make any claim (of any nature) against us if we elect to exercise our rights under this clause 5
- You must pay the Price until such time as the Goods have been returned to us.
- In addition to the Price for the Goods, you agree to pay the following (if applicable):
- Where required, transport of the Goods to and from the site(s) nominated by you.
- Any consumables, fuel or trade materials that we supply to you.
- If you do not return the Goods in clean and/or good working condition, charges for the cleaning and/or repair of the Goods and which will include the imposition of ongoing hire charges for the time required to clean and/or repair the Goods.
- Where requested by you, the costs of installation.
- Any applicable levies, fines, penalties and any other government charges arising out of your use of the Goods.
- Operational and training Services provided by us to you (at your request) in connection with the Goods.
- Any reasonable charges incurred by us if we are unable to inspect or carry out maintenance on the Goods during normal working hours.
- Any rates, costs or charges notified to you in writing prior to you hiring the Goods.
- If no time is stated for the payment of the Price on an invoice issued to you, then payment will be on or prior to delivery of the Goods (COD).
- We reserve the right at any time to revise the hire fees/Price by providing you with written notice (Price Increase Notice). However, the Price cannot be increased during the period of an agreed fixed term hire unless you agree to the increase in writing. Where the increase in Price applies to Goods already on hire to you, you may in your discretion terminate the hire in writing to us and return the Goods to us within two (2) Business Days of receiving a Price Increase Notice. If such notice is not received by us and the Goods are not returned within the period referred to in the preceding sentence then the increased Price set out in the Price Increase Notice will apply on and from the time stipulated in that notice.
- You may cancel an order for the hire of our Goods at any time by advising us in writing; however cancellation fees will apply as follows:
- If cancelled within 7 days of the commencement of the Hire Period – 100% of the total Price will be payable and non-refundable (if already paid) in all circumstances.
- If cancelled between 7 days and 30 days prior to the commencement of the Hire Period – 50% of the total Price will be payable and non-refundable (if already paid) in all circumstances.
- If cancelled greater than 30 days prior to the commencement of the Hire Period – 10% of the total Price will be payable and non-refundable (if already paid) in all circumstances.
- For the avoidance of doubt, cancellations of bookings/events due to weather shall still be subject to the cancellation policy above.
- Return of Goods
- You must return the Goods to us in the same clean condition and good working order as given to you (ordinary fair wear and tear excepted) on or before the date the Hire Period ends.
- Subject to clause 3, unless we have otherwise agreed in writing, it is your responsibility to return the Goods to the branch you hired it from during normal business hours.
- If we agree to collect the Goods, you must ensure that the Goods are kept safe and secure until the time of collection.
- Your obligations
- You must not allow nor authorise any other person to use, re-hire or have possession of the Goods at any time, unless expressly agreed by us in writing.
- You agree that before taking delivery of the Goods, you have satisfied yourself as to the suitability and condition of the Goods and you will ensure that the Goods are used only for the purpose for which they were designed.
- We make no representations and give no guarantee or warranty that the Goods are suitable for your intended purpose.
- You must:
- ensure that persons installing the Goods (who are not us) are suitably qualified and trained on safe and proper installation;
- not in any way alter, modify, tamper with, damage or repair the Goods without our prior written consent; and
- not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information on the Goods.
- At all times during the Hire Period for the Goods, you must store the Goods safely and securely.
- Whenever you are moving the Goods, you must ensure the safe loading, securing and transportation of all Goods in accordance with all laws, the manufacturer’s guidelines and our requirements. You must observe any safety directions advised by us and/or the manufacturer of the Goods to ensure safe loading and handling.
- You must not remove the Goods from the site advised to us prior to the Hire Period without our prior written consent.
- Responsibility for the Goods
- You are responsible for any loss, theft or damage to the Goods whilst it is in your possession.
- You are responsible and liable for the cost of:
- repairing any damage caused to the Goods whilst in your possession (including removal of any graffiti, posters or stickers);
- the replacement costs of such Goods if it is lost, stolen or otherwise damaged beyond, whilst in your possession; and
- where requested by you, the costs of installation, removal, servicing and maintenance.
- At all times you must adhere to our recommendations with respect to the use of the Goods.
- If you do not require us to install and remove the Goods, you are solely responsible for the correct installation, calibration and use, including any attachments fitted to the Goods.
- If you wish to use any attachments fitted to the Goods which have not been supplied by us, you must seek our approval in writing.
- Upon request being made by us, you must immediately allow us to enter the premises on which the Goods are located, and inspect and maintain the Goods from time to time at any time during the hire period during normal working hours.
- If you cannot, or refuse to allow us to inspect or maintain the Goods during normal working hours, then additional charges may apply at our absolute discretion.
- You may request to conduct a joint inspection of the Goods with us at the end of the Hire Period.
- Breakdown of the Goods
- In the event that the Goods break down or become unsafe to use during the Hire Period, you must:
- immediately stop using the Goods and notify us;
- take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Goods;
- take all steps necessary to prevent any further damage to the Goods; and
- not repair or attempt to repair the Goods without our written consent.
- Subject to clause 3, upon receiving notice from you, we will:
- take all reasonable steps to repair the Goods or provide suitable substitute Goods as soon as reasonably possible; and
- not impose a hire charge forming part of the Price for that portion of the Hire Period for which the Goods were broken down or unsafe, nor the costs associated with any repair or replacement of the Goods.
- If the Goods break down or become unsafe as a result of your acts or omissions (including where your invitees, patrons or customers cause such issues) or your failure to comply with these terms and conditions, then you will be liable to us for the full Price of the Hire Period for which the Goods are inoperable, as well as all costs associated with any repair or replacement of the Goods.
- Title in the Goods
- You acknowledge that we own the Goods and in all circumstances we retain title to the Goods. Your rights to use the Goods are as a bailee only.
- Subject to clause 4, you are not entitled to offer, sell, assign, licence, lease, sub-let, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with the Goods in any way.
- In no circumstances will the Goods be deemed to be a fixture.
- You must not lease, hire, bail or give possession (Sub-Hire) of the Goods to anyone else unless we, in our absolute discretion, first consent in writing. Any such Sub-Hire must:
- be in writing in a form acceptable to us and must be expressed to be subject to our rights under the Sub-Hire agreement;
- be consistent with these terms and conditions; and
- does not relieve your rights and obligations with respect to the Goods pursuant to these terms and conditions.
You may not vary the arrangements relating to a Sub-Hire without our prior written consent which we, at our absolute discretion, may refuse or approve subject to any conditions we think fit. You must ensure that we are provided at all times with up-to-date information about the Sub-Hire including the location and condition of our Goods.
- Lost, stolen or damaged Goods
- If the Goods:
- have broken down or become unsafe to use as a result of your acts or omissions (including where your invitees, patrons or customers cause such issues) or your failure to comply with these terms and conditions; or
- if the Goods are lost, stolen or damaged beyond fair wear and tear,
you will be liable for:
- any costs incurred by us to recover and repair or replace the Goods; and
- the Price for that portion of the Hire Period during which the Goods are being recovered and repaired or replaced.
- We reserve our rights to claim against you for loss, theft or damage to the Goods where the loss, theft or damage:
- has arisen as a result of your breach of any contract we have with you for the Goods;
- has been caused by your negligent act or omission;
- has been caused by your failure to use the Goods for their intended purpose or in accordance with our instructions;
- occurs to the Goods whilst they are located, used, loaded, unloaded, or on vessels of any kind;
- has been caused by a failure to properly service or maintain the Goods.
- Defective Goods on Delivery
Pursuant to clause 10, you must inspect the Goods on delivery and must within twenty-four (24) hours notify us in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description, specification or quote.
- Your indemnity
- You are liable for and indemnify us against all liability, claims, damages, losses, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against us) (Losses) in respect of:
- personal injury;
- damage to property; or
- a claim by a third party,
in respect of your use of the Goods and/or breach of these terms and conditions. Your liability under this indemnity is reduced to the extent that such claim or loss was incurred as a result of our negligent acts or omissions.
- We will not be liable to you for any acts or omissions of any person supplied by us where that person is acting under your direction and control during the hire period and you indemnify us against all Losses arising from or incurred in connection with such acts or omissions.