Terms and Conditions

You are bound by these Terms and any additional terms specified in our quotation each time you place an Order with us.

 1. Price and Payment

1.1 The Price for the Services is as per our written quote (which expires after 30 days).   We may update the quote at any time (prior to acceptance by you) if there is a change to our wages, materials or any other input costs.

The Fees payable to us to perform the Services may be adjusted from time to time as agreed by the Parties in writing (including by email) on account of changes in relation to the nature of the Services to be performed by us pursuant to this agreement.

Unless otherwise specified in the quote, all Prices are:

(a) in Australian dollars; and
(b) quoted on a Delivery Duty Paid (DDP) basis and inclusive of GST.

1.2 (Payment) The Consumer will pay us the Fees set out in the Schedule and the Consumer will reimburse us for any pre-agreed out of pocket expenses for the Services.

In order to receive payment under this clause, we must provide the consumer with a tax invoice that complies with any invoicing guidelines released by the Australian Taxation Office from time to time that includes our ABN, a description of the Services and any receipts for pre-agreed out of pocket expenses.

We will issue you with a valid tax invoice for the Price (usually on delivery).  You must pay each invoice within 30 days, unless our quote stipulates other payment terms (eg cash on delivery).

1.3 (Late Payment) If invoices are unpaid for 30 days, we have the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to us. The consumer acknowledges and agrees that it is liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out of pocket expense and that the contractor may place a default against the consumer with a credit reporting agency. The consumer will indemnify us for the full amount of our legal and debt recovery costs.

If you are regularly late paying your invoices (as reasonably determined by us), or you do not pay an invoice more than 5 Business Days after we issue a late payment notice, we will charge you Default Interest on the overdue amounts, as well as our reasonable costs of debt recovery.

2. Product Warranties

2.1 (Products) We warrant that on delivery the Products will:
(a) conform with their Specifications (subject to clause 2.2 below); and
(b) not infringe a third party’s Intellectual Property Rights (unless Products are manufactured to Specifications or designs provided by you, or the infringement is caused by your branding or your other Intellectual Property Rights).
To avoid doubt, you are responsible for ensuring the Specifications are appropriate for your intended use of the Product (including any safety or dangerous goods requirements) – as we do not give any fit for purpose warranty.
If we breach the non-infringement warranty in (b), we must (at our cost and as your sole remedy) promptly (i) procure for you the right to continue use of the Products; (ii) modify such Products so that they become non-infringing but otherwise meet your requirements; or (iii) replace such Products with non-infringing Products.

2.2 (Your storage & handling) Once Products are delivered, you must ensure they are handled and stored appropriately (having regard to the nature of the Products). To the extent permitted by law, we are not liable for any loss of or damage to the Products (including any defect or non-conformance to Specifications), to the extent caused by the way you have handled or stored the Products. In particular, unless otherwise advised by us in writing, you must ensure that Products are stored in dry and cool conditions, away from direct sunlight.

3. Liability and insurance

3.1 (Our liability) Subject to clause 3.2 and to the extent permitted by law, our liability to you (whether arising in contract, negligence or otherwise) is limited to (at our option):
(a) the replacement of your Products or supply of Products which are equivalent;
(b) the payment of the cost of replacing your Product or of the supply of an equivalent Product; or
(c) refunding the amount of your Order.

3.2 The above limitation will not apply to our liability for death, personal injury or tangible property damage to your premises, to the extent that liability is caused by our negligence or wilful misconduct, or to our liability for fraud.

3.3 To the extent permitted by law, we will not be liable to you (whether in contract, negligence or otherwise) for any loss of revenue or profits, goodwill or reputation, loss of or interruption to business, loss of production or any other indirect or consequential loss.

3.4 (Mitigation) Each party must act reasonably to mitigate the loss or damage it suffers under or in relation to an Order.

3.5 (Insurance) We hold public and product liability insurance of $20million per occurrence and in the annual aggregate.

4. Intellectual Property Rights

4.1 (Pre-existing IP) Each party at all times continues to own its Intellectual Property Rights that were in existence as at the date of this Agreement (Pre-existing IP). Nothing in this agreement transfers any Pre-existing IP of a party to the other.

4.2 In particular, we continue to own all Intellectual Property Rights in our Product Specifications, designs, manufacturing processes, procedures and trade secrets. You must not reverse engineer, replicate, copy or commercialise any of our Intellectual Property Rights.

4.3 To the extent you require us to use any of your Pre-existing IP in manufacturing the Products, you warrant that your Pre-existing IP does not violates a third party’s Intellectual Property Rights, and you indemnify us for all loss, liability, damage, cost or expense we suffer or incur as a direct result of your breach of this warranty.

4.4 (Developed IP) Unless otherwise agreed in writing, we own all Intellectual Property Rights which we develop in supplying the Products.

5. Termination

5.1 A party may terminate an Order where:
(a) the other party is in breach of these Terms, and fails to remedy that breach within 21 Business Days of written notice of its breach; and
(b) to extent permitted by law, an application is made to a court to wind up the other party, or a receiver or administrator is appointed to manage the affairs of the other party.

5.2 Any rights or obligations in these Terms which by their nature are continuing, will survive termination or expiration of this Agreement (eg obligations of reimbursement, confidentiality, limitation of liability).

6. Force Majeure

6.1 We are not liable for delay or non-performance of our obligations to the extent caused by a Force Majeure Event. We will notify you if we are impacted by a Force Majeure Event and use reasonable endeavours to overcome it. If a Force Majeure Event continues for a period of 60 days or more, either party may terminate the relevant Order.

7.PPSA

7.1 If you fail to pay by the due date any amount owing to us, we may (without limiting our other rights) recover and resell any of the Products in which property has not passed to you. You authorise us to enter onto the premises where the Products are kept to take possession of the Products for that purpose at any time, and you indemnify us for our reasonable costs or liability incurred. We may only recover and resell for our own account sufficient Products to satisfy all unpaid liabilities, the costs of recovery and resale and any other costs or expenses recoverable under this Contract. If we recover any excess, we will not be liable in damages to you but must account for the excess in accordance with the PPSA or other applicable laws. If there is any inconsistency between our rights under this clause 7.1 and our rights under the PPSA, this clause prevails (to the extent permitted by law).

7.2 You acknowledge and warrant that we have a security interest (for the purposes of the PPSA) in the Products and any proceeds until title in the Products passes to you. You must do anything reasonably required by us to enable us to register and maintain our security interest. Our security interest attaches to the Products when you obtain possession of them.

7.4 We do not need to give you any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and cannot be excluded. All payments for Products and Services received from you must be applied in accordance with section the relevant provisions of the PPSA.

8. General

8.1 (Laws) This Agreement will be governed by laws of New South Wales, Australia for Products and Services supplied in Australia.

9. Definitions

Business Days means Monday to Friday, excluding public holidays in New South Wales, Australia (for supplies in Australia).
Confidential Information means information of a party that is by its nature confidential, including information about a party’s pricing, processes, product design, services, customers and strategy.
Consumer has the meaning under the relevant Consumer Laws.
Consumer Law means (a) in Australia, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth); and (b) in New Zealand, as set out in the Fair Trading Act 1986 (NZ) and the Consumer Guarantees Act 1993 (NZ).
Default Interest means the 90 day Bank Bill Swap Bid Rate (as quoted on Reuters page BBSY at 10.45am) plus 2% commencing from the due date of payment (with interest accruing daily until all monies owing are paid in full).
Delivery Date means the date the Products are to be delivered and/or Services are to be carried out, as confirmed by us.
Delivery Location means the delivery location agreed by the parties in writing.
Force Majeure Event means any event or circumstance which is beyond our reasonable control, including acts of God and natural disasters, acts of war, terrorism, epidemic, general unavailability or failures of the internet or public utilities (eg electricity), breakdown of machinery (where not caused by gross negligence), denial of service attacks and other intentional acts of harm by third parties, strikes and industrial action, acts of any government or governmental agency, and international trade embargoes and restrictions.
Products means all products described in our quote or invoice.

Services means all services described and/or carried out as required by our quote or invoice.
GST has the meaning in: (a) for supplies in Australia – the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
PPSA means (a) for supplies in Australia – the Personal Property Securities Act 2009 (Cth).
Price means the price for the Products and/or Service as set out in our quote or invoice.
Intellectual Property Rights means all rights (whether created before, on or after the date of this Agreement and whether registered or unregistered) in respect of copyright, trade marks, patents, designs, protection of confidential information, circuit layouts, inventions, know-how, product, service or business concepts and any other identifiable result of intellectual endeavour, whether arising under statute or otherwise.
Order means each order for the Products and/or Service which you requested with us.
Personnel means the employees, representatives, agents, officers, contractors and subcontractors of a party.
Specifications means our standard specifications for the Products, Services, or any other specifications we have agreed with you in writing.
Taxable Supply has the meaning in the relevant GST legislation.
Terms means the terms and conditions in this document