Additional Charge means fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with the Supplier’s then current prices; and expenses incurred by the Supplier, at the Customer’s request or reasonably required as a result of the Customer’s conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.
Confidential Information means information, including of a commercial and/or financial nature, whether written or oral, and whether or not marked as confidential, including without limitation:
the contents of this Agreement;
information regarding customers, clients, suppliers, contractors, employees or other persons doing business with a Party;
trade secrets; and
other information relating to the business or affairs (including financial position, internal management, policies, strategies and procedures) of a Party,
but excluding certain categories of information identified in this Agreement.
Customer means the person identified on a Quote or invoice as the customer and includes the Customer’s agents and permitted assigns.
Goods means the goods to be provided by the Supplier to the Customer in accordance with the Quote or invoice and these terms of trade.
Intellectual Property means any and all copyrights, patents, trademarks, trade names, logos, software, documentation, technical and manufacturing techniques, concepts, methods, designs, specifications and other proprietary information relating to the Goods and any modifications, enhancements or derivatives thereof.
Loss includes, but is not limited to, costs (including party to party legal costs and the Supplier’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Person means an individual, corporation, government or governmental agency, estate, trust, partnership, association or other legal or commercial entity or undertaking.
Supplier means Effusiontech Pty Ltd or the entity specified as the supplier of Goods on the Quote or invoice and includes the Supplier’s agents and permitted assigns.
In these terms of trade, unless the context otherwise requires:
a. a reference to writing includes email and other communication established through the Supplier’s and/or Customer’s website (if any);
b. the singular includes the plural and vice versa;
c. a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;
d. a reference to a party to these terms of trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
e. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
f. headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
g. if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
i. if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
ii. in all other cases, must be done on the next Business Day.
a. These terms of trade apply to all transactions between the Customer and the Supplier relating to the provision of Goods. This includes all quotations, purchase orders, invoices, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the Customer or elsewhere.
b. The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
a. The Supplier shall provide the Customer with a Quote. Any Quote issued by the Supplier is valid for sixty (60) days from the date of issue.
b. Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to the Supplier.
c. Following provision of a Quote to the Customer, the Supplier is not obliged to commence work until the Quote has been accepted by the Customer. This occurs by the Customer completing a Purchase Order and returning the Purchase Order to the Supplier.
d. An indication in a Quote of the time frame for the provision of the Goods is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon the Supplier.
e. The terms of the Quote are confidential.
f. Customer shall pay for the Goods within the time frames or on or before the date(s) specified in the Quote or invoice, and is not entitled to and shall not suspend payments, set off or otherwise deduct from any amounts invoiced by Supplier. No rights to purchase Goods on credit are conferred herein, and any extension, modification or withdrawal of credit and credit terms are reserved solely to Supplier in its discretion. Except as otherwise agreed, all payments are due in Australian dollars.
g. Placement of a Purchase Order by the Customer signifies acceptance by the Customer of these terms of trade and the most recent Quote provided by the Supplier relating to that Purchase Order.
h. The Supplier may in its absolute discretion refuse to provide Goods where:
i. Goods are unavailable for any reason whatsoever;
ii. credit limits cannot be agreed upon or have been exceeded; or
iii. payment for Goods previously provided to the Customer has not been received by the Supplier.
i. A Purchase Order cannot be cancelled without the prior written consent of the Supplier. Where a Purchase Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation. This includes, but is not limited to, cost of any and all work already undertaken, cost of parts purchased and loss of profit from other orders foregone as a result of the scheduling of the Purchase Order which is subsequently cancelled.
j. If the Customer wishes to vary its requirements after the placement of a Purchase Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods.
k. The Supplier has an automatic extension of time for the provision of the Goods equal to the delay caused by the variation.
5. Invoicing and payment
a. The Supplier may in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
i. prior to commencing the provision of the Goods, for an amount equal to the Quote and Additional Charges where the Supplier has not previously carried out work for the Customer or where the Supplier chooses to do so;
ii. at the end of each week before the Purchase Order is completed, the Supplier may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at the Supplier’s discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Goods being provided; or
iii. upon completion of the provision of the Goods or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Supplier’s charge for the work performed in completing the Purchase Order and for any Additional Charges.
b. The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
i. the amount for the Goods as set out in the Quote and any Additional Charges, or
ii. where no Quote has been provided by the Supplier, the Supplier’s usual charges for the goods or as described in the Quote.
c. The Customer must pay an invoice issued by the Supplier within fourteen (14) days of a valid tax invoice being issued to the Customer.
d. If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods until overdue amounts are paid in full.
e. The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
f. All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these terms of trade.
g. The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.
6. Title and risk
a. Risk in Goods passes to the Customer immediately upon delivery.
b. Property and title in Goods supplied to the Customer under these terms of trade does not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.
c. Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods, the Customer acknowledges that the Supplier has a right to register and perfect a personal property security interest.
a. Supplier will attempt to cooperate with Customer’s requested delivery dates or other related delivery requests, but cannot and does not warrant quoted shipment or delivery dates or time frames, and may fulfil ordered items by partial and incremental shipments, in its sole discretion.
b. Customer acknowledges and agrees that all costs and obligations associated with shipment and delivery of Goods shall be borne solely by Customer; that any insurance desired therefore shall be Customer’s sole obligation and expense; and that in no event shall Supplier be liable for any direct or indirect damage or loss that the Customer may incur resulting from any delivery failure or delay.
c. Customer will notify Supplier in writing within ten (10) calendar days following the date of delivery of any alleged Good defect or other Purchase Order discrepancies, and the Goods shall be deemed to be accepted in the quantity specified on the bill of lading or commercial invoice and in good condition, and such acceptance will operate as a bar to claims against Supplier, if no such notice is received.
8. Intellectual Property Rights
a. All Intellectual Property Rights in respect of the Goods remain the property of the Supplier.
b. The Supplier grants to the Customer a non-exclusive, royalty-free, right to use the Intellectual Property in respect of the Goods.
a. Each Party undertakes to keep the Confidential Information confidential and not to use such Confidential Information other than for the purpose of this Agreement.
b. Each Party will take all necessary precautions to prevent any unauthorised disclosure or use of the Confidential Information by its officers, directors, employees or other representatives.
c. The obligations of confidentiality contained in this clause will not apply to the disclosure of Confidential Information:
i. that was already known to the receiving Party at the time of disclosure (as demonstrated by contemporaneous documentation);
ii. was generally available to the public or otherwise part of the public domain at the time of its disclosure to the other Party;
iii. became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement;
iv. was disclosed to the receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the other Party not to disclose such information to others.
d. Each Party acknowledges that the value of the other Party’s Confidential Information is such that an award of damages or an account of profits may not be adequate compensation if this Clause 9 is breached.
e. Upon termination or expiry of this Agreement each Party will, as soon as reasonably practicable, return to the disclosing Party all copies of all Confidential Information and all copies of all documents containing Confidential Information, or will destroy or erase all copies of all such Confidential Information and documents in a manner that is verifiable by the disclosing Party.
10. Agency and assignment
a. The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these terms of trade.
b. The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these terms of trade.
c. The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of the Supplier.
11. Default by Customer
a. Each of the following occurrences constitutes an event of default:
i. the Customer breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 14 days of being given notice by the Supplier to do so;
ii. the Customer, being a natural person, commits an act of bankruptcy;
iii. the Customer, being a corporation, is subject to:
1. a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
2. a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking;
3. the entering of a scheme of arrangement (other than for the purpose of restructuring); and
4. any assignment for the benefit of creditors;
iv. the Customer purports to assign its rights under these terms of trade without the Supplier’s prior written consent; or
v. the Customer ceases or threatens to cease conduct of its business in the normal manner.
b. Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
vi. terminate these terms of trade;
vii. terminate any or all Purchase Orders and credit arrangements (if any) with the Customer;
viii. refuse to deliver Goods;
ix. repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
x. retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.
c. In addition to any action permitted to be taken by the Supplier under paragraph 14(b), on the occurrence of an event of default all invoices will become immediately due and payable.
a. Supplier warrants the Goods shall be free from defects in materials and workmanship
b. In respect of a valid warranty claim under Section 12(a) above, Suppliers’ sole obligation and Customer’s sole remedy is either repair or replace, at Suppliers’ sole option, any such Good, with a new or refurbished conforming Goods.
c. Supplier’s limited warranty obligations in Clause 12(a) shall terminate and shall not apply in any case where any alleged Good failure or other breach of warranty was necessitated or caused in whole or in part by:
i. catastrophe, fault or negligence of the Customer;
ii. operation or use of the Good in violation of applicable laws or regulations;
iii. improper or unauthorised use;
d. THE WARRANTIES SET FORTH IN THIS SECTION 12 (WARRANTY) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT). THE REMEDIES PROVIDED IN SECTION 12(b) (LIMITED WARRANTY REMEDIES) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF SUPPLIER TO CONFORM WITH SUCH LIMITED WARRANTY, AND CUSTOMER SHALL HAVE NO CLAIM, EXCEPT AS AFORESAID, AGAINST SUPPLIER WHETHER BASED IN CONTRACT, TORT, GOOD OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE. REPAIR OR REPLACEMENT OR REFUND (AS ELECTED BY SUPPLIER) IN THE MANNER PROVIDED ABOVE SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF SUPPLIER WITH RESPECT TO ITS LIMITED WARRANTY, AS WELL AS FOR ANY CLAIMS BASED ON OR RELATING TO THE QUALITY AND PERFORMANCE OF THE GOODS. CUSTOMER IS SOLELY RESPONSIBLE IN ALL CASES FOR SELECTION OF THE GOOD(S), SOFTWARE AND SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS OR FOR CUSTOMER’S PARTICULAR APPLICATIONS.
13. Exclusions and limitation of liability
a. All information, specifications and samples provided by the Supplier in relation to the Goodsare approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
b. Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any Loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods.
c. The Customer may direct the Supplier to obtain components or services from third parties for use in the provision of the Goods (Directed Source Supplies). Supplier shall not be responsible to the Customer for any warranty or other claims arising from or related to Directed Source Supplies or from the failure of the third party to timely provide Directed Source Supplies.
d. Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
e. TO THE FULLEST EXTENT PERMISSIBLE AT LAW, THE SUPPLIER IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PROVISION OF OR FAILURE TO PROVIDE GOODS, SERVICES OR SOFTWARE, OR OTHERWISE ARISING OUT OF THE PROVISION OF GOODS OR THE SERVICES, WHETHER BASED ON TERMS OF TRADE, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
f. The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, the Supplier’s liability (if any) arising from any breach of those guarantees is limited to the remedies available in Clause 15(b).
g. This clause survives termination of these terms of trade.
a. The Supplier indemnifies and agrees to keep indemnified Customer, its directors, employees, contractors and agents for any Loss, claim or liability it may occur as a result of any act or omission of Supplier. The Customer indemnifies and agrees to keep indemnified Supplier, its directors, employees, contractors and agents for any Loss, claim or liability it may occur as a result of any act or omission of Customer.
b. This provision remains in force after the termination of these terms of trade.
18. Force Majeure
a. If circumstances beyond the Supplier’s control prevent or hinder its provision of the Goods, the Supplier is free from any obligation to provide the Goods while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
b. Circumstances beyond the Supplier’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
a. These terms of trade are governed by the laws of the state of Victoria, Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.
b. These terms of trade and any Quote or Invoice and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
c. These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
d. In entering into these terms of trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
e. If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
f. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
g. A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote and/or Purchase Order (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent by fax to the fax number of the addressee specified in the relevant Quote, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
h. A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
i. A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.
j. The parties hereto are independent contractors and nothing herein shall be construed as creating a partnership or granting the right to bind the other.