Terms & Conditions

1. DEFINITIONS

  • In these Terms unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
    • “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
    • “Applicable Laws” any laws governing or affecting the arrangements contemplated by these Terms;
    • “Claim” means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity);
    • “Client” means the Client identified in the Quote, and if there is more than one Client is a reference to each Client jointly and severally;
    • “Client’s Address for Service” means the email address or address of the Client set out in the Quote;
    • “Commencement Date” the date these Terms become binding on the Client in accordance with clause 2.
    • “Corporations Act” means the Corporations Act 2001 (Cth);
    • “Force Majeure” means an act, omission or circumstance over which the Supplier could not reasonably have exercised control;
    • “Goods” means any goods (such as caravan parts including rear bars, toolboxes, wheel spats, wheel boxes, dust reduction systems, access doors, and slide-out kitchens) supplied by the Supplier to the Client from time to time;
    • “GST” has the meaning given to it in the GST Act;
    • “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
    • “Insolvency Event” means:
      1. a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
      2. a liquidator or provisional liquidator is appointed in respect of a person;
  • any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph i) or ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
  1. any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
  2. any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs i) to iv) of this definition (inclusive); or
  3. a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts
  • “Loss” any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
  • “Personnel” means the directors, officers, employees, contractors, suppliers, advisers or agents of a party;
  • “Plans” means any drawings, structural or other plans, specifications, documents, instructions or information provided by the Client (or its Personnel) to the Supplier or otherwise provided by the Supplier to the Client;
  • “PPSA” means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;
  • “PPS Register” means the Personal Property Securities Register established under the PPSA;
  • “Quote” means the quote, offer, tender or proposal provided by the Supplier to the Client and as attached to these Terms;
  • “Services” means any services supplied by the Supplier to the Client, from time to time and includes without limitation the design and fabrication of the Goods (and the Goods themselves);
  • “Supplier” means Wolf Fabrication Pty Ltd ABN 12 665 773 768;
  • “Supplier’s Address for Service” means the email address or address of the Supplier as set out in the Quote or as otherwise nominated by the Supplier from time to time;
  • “Supplier’s Warehouse” means 35 Nexus Road, Epping VIC 3076.
  • “State” means Victoria and
  • “Tax Invoice” has the same meaning as in the GST Act.
  • “Terms” means these Terms and Conditions of Trade.
  • In these Terms unless inconsistent with the context or subject matter:
    • References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
    • Words denoting the singular include the plural and words denoting the plural include the singular.
    • Words denoting any gender include all genders.
    • The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
    • Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
    • Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
    • No provision of these Terms will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms.
    • If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
    • A reference to time is a reference to time in the capital city of the State.
    • A reference to a day is a reference to a day in the capital city of the State.
    • A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
    • If any act is required to be performed under these Terms on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
    • A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
    • Where these Terms are executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
    • A reference to writing or written includes email.
    • Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2. Application

  • These Terms, including any Quote, will become binding on the Client on the earlier of the date that a) the Client indicates their acceptance to the terms (such as by accepting a Quote); b) the Client instructs the Supplier to proceed with any Services; or c) the Client pays any amount to the Supplier in respect of the Services.
  • These Terms apply to all Services provided by the Supplier to the Client at any time following the Commencement Date and will continue until terminated.
  • The Client cannot terminate these Terms except to the extent as expressly permitted by these Terms.
  • Unless otherwise agreed all Quotes are valid for 30 days from the date of the quotation, and will only become binding on the Supplier when the Supplier expressly acknowledges acceptance. Any fees stated in a Quote are provided on the basis of the information current to the Supplier at the date of the invoice. The Supplier reserves the right to increase the fees where applicable in accordance with the terms of this Agreement.
  • The Client acknowledges and agrees that the supply of Services remains subject to availability and if, for any reason the Supplier is unable to proceed with the supply, the Supplier reserves the right to cancel the Services (and issue a refund for the cancelled Services if applicable). This is the Client’s only remedy in these circumstances and the Supplier will not be liable to pay any other amount to the Client.
  • No invoice, terms or other document issued by or on behalf of the Client (including the terms on any warranty or other agreement given to the Supplier) will vary or form part of these Terms unless otherwise agreed by the Supplier in writing. These Terms replace and supersede any invoice, terms or other document given by the Client to the Supplier whether before or after the time that these Terms are supplied to the Client.

3. provision of SERVICES

  • The Supplier will provide the Services to the Client on the terms and conditions contained in these Terms.
  • The scope of the Services being provided will be as agreed upon by the parties in the Quote. Amendments will be dealt with under the amendment policy set out in clause 7. The Client acknowledges that the Services are limited expressly to those items specified in the Schedule, any other items are deemed out of scope and will be quoted and attract additional fees.
  • The Quote may contain additional terms which form part of these Terms. In the event of any inconsistency between these Terms and any Quote, the terms contained in the Quote will prevail to the extent of such inconsistency.
  • The Supplier may subcontract, delegate or perform the Services through any person without the prior written consent of the Client.
  • The provision of Services to a third party nominated by the Client shall be deemed to be provision of the Services to the Client for the purpose of these Terms.

4. Fees

  • The fees payable by the Client to the Supplier for the Services is the amount either specified in a Quote or where no Quote is provided, is an amount determined in accordance with the Supplier’s then current price list (as at the date of delivery) which is available upon request.  
  • The Supplier reserves the right to vary the fees payable, even after the Client has accepted a Quote or instructed the Supplier to proceed with the Services, in the event of:
    • variations to the Services requested (including the specifications of the Goods);
    • any variation to the Supplier’s cost of labour or materials, or fluctuations in currency exchange rates, inaccurate structural measurements provided by the Client or otherwise inaccurate Plans, or where additional Services are required due to unforeseen circumstances which are beyond the Supplier’s control.
  • Such variations will be charged for on the basis of the Supplier’s Quote or then current price list as applicable, and will be shown as variations on the invoice.
  • Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST and the Client must pay GST on the fees at the same time as payment of the fees is due.

5. PAYMENT

  • The Client must pay the fees for the Services at the time/s as specified in the Quote. If no time/s are stated or no Quote given, then fees for the Services are due upfront upon accepting a Quote.
  • At the Supplier’s sole discretion a non-refundable deposit may be required. If a deposit is set out in the Quote, the Client must pay the deposit immediately upon accepting a Quote, and the Client acknowledges that the Supplier will not order or manufacture the Goods until payment is received.
  • Payment may be made by any other method as agreed to between the Supplier and the Client. All fees are non-refundable to the extent permitted by law.
  • The Client will also pay to the Supplier, on demand, on a full indemnity basis, all amounts that the Supplier may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis and any debt collection agency costs/commissions) as a result of the Client defaulting on any of the terms of these Terms.
  • If payment is not made in accordance with this clause 5, the Supplier may (without limitation to its other rights):
    • require the Client to pay the Supplier interest on all outstanding monies from the due date until the date of payment at the rate of 12% per annum accruing daily;
    • demand payment and all money payable under these Terms or any Quote to the Supplier shall immediately become due and payable;
    • refuse to supply any further part of the Services to the Client until all outstanding monies, including any accrued interest, is paid in full; or
    • terminate these Terms whereupon the full price for the Services then supplied, whether or not the time for payment under these Terms has arrived, will be immediately due and payable.
  • The Client may not withhold payment or make any deduction from any amount owing without the Supplier’s prior written consent, irrespective of any claim the Client may have against the Supplier.

6. PERFORMANCE OF SERVICES

  • The Services will be supplied in the manner as set out in the Quote and on and from the date as specified in the Quote, or where no date is specified, then from a date as agreed between the parties.
  • Although the parties may have agreed on the delivery schedule, the parties acknowledge and agree that:
    • any times provided by the Supplier to the Client in respect of the provision of the Services are variable and estimates only and are non-binding on the Supplier. Whilst the Supplier attempts to provide all Services at the agreed times, sometimes delays are inevitable and the Supplier will not be responsible for any Losses suffered by the Client in the event of delay; and
    • failure of the Supplier to meet any delivery date will not constitute a breach of these Terms by the Supplier or entitle the Client to any damages or other remedy.
  • Where the Client provides Plans to the Supplier, then in the event that the Plans are defective, the Supplier will not be liable to the Client for any Loss that they suffer and the Client will still be liable to pay the entirety of the fees even if the Supplier is unable to properly or fully provide the Services.
  • Where the Supplier prepares any Plans, the Client is solely responsible for reviewing them and ensuring that they are fit and suitable for the Client’s purposes. The Supplier will not be liable for any defect in the Plans, except to the extent the defect is directly caused by the Supplier’s negligence or breach of this Agreement. The Supplier shall be entitled to rely on the accuracy of any Plans provided by the Client.
  • Despite this, the Supplier shall be under no obligation to vary the Services set out in a Quote even if the Supplier becomes aware of the requirement for additional Services or a defect or error in the Plans. The Client is solely responsible for ensuring the Plans and scope of Services are suitable.
  • All customary building industry tolerances shall apply to the dimensions and measurements of the Goods unless the Supplier and the Client agree otherwise in writing.

7. VARIATIONS AND AMENDMENTS

  • Subject to the other terms of this clause, either party may propose changes to the scope or execution of the Services but no changes shall come into effect until agreed by both parties. Variations may result in delays and an extension may be required.
  • If the Supplier determines that additional Services are required to be carried out, or if for any reason there is a defect or error in the Plans (or the Services requested by the Client which formed the basis for the Quote are incorrect or not ultimately suitable such as where there is an error in the Plans), then the Supplier reserves the right to increase the fees payable for the Services by providing the Client with written notice and such increases in the fees are payable immediately on demand by the Supplier (unless otherwise agreed by the Supplier).
  • Any Services outside of scope will incur additional costs.

8. Ownership, risk and assessment

  • Notwithstanding anything to the contrary express or implied in these Terms, the parties agree that the Supplier retains full title to the Goods and title will not at any time pass to the Client until the purchase price for the Goods and all other amounts owing in respect of the Goods are paid to the Supplier.
  • Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
  • Even if the Supplier retains ownership of the Goods, all risk for the Goods passes to the Client:
    • (for EXW, Incoterms terms) on collection of the Goods at the Supplier’s Warehouse by the Client or a nominee of the Client (as the case may be); or
    • (otherwise) on collection of the Goods by a nominated delivery agent at the Supplier’s Warehouse (in the event that the Supplier arranges delivery on behalf of the Client).
  • The Client must insure the Goods on or before delivery. If the Client requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
  • If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Supplier is entitled to:
    • receive payment for the Goods; and
    • for any shortfall of the payment of the Goods, receive the insurance proceeds payable for the Goods (for the amount of the shortfall). The production of these Terms by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries
  • The Client acknowledges and agrees that in the case of the Goods prior to ownership passing to the Client):
    • it holds the benefit of the Client’s insurance of the Goods on trust for the Supplier, and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
    • it will, if requested by the Supplier, return the Goods to the Supplier following non-fulfilment of any obligation of the Client (including payment of monies) without limiting any other right the Supplier may have;
    • it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Goods without the express written consent of the Supplier; and
    • it will deliver up the Goods to the Supplier upon demand by the Supplier and give the Supplier or its agents or authorised representatives the right to enter any premises occupied by the Client and any premises where it believes any Goods may be stored such as the Site (without liability for trespass or any resulting damage) and to use the name of the Client and to act on its behalf, if necessary, to recover possession of the Goods and agrees to indemnify the Supplier and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Goods from the Client’s possession or control;
    • it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Goods on trust for and as agent for the Supplier immediately when they are receivable or are received; and
    • the Supplier may recover as a debt due and immediately payable by the Client all amounts owing by the Client to the Supplier in any respect even though title to the Goods has not passed to the Client.

9. Delivery of goods

  • The Goods are sold by the Supplier to the Client ex works (EXW, Incoterms) unless otherwise agreed.
  • Unless otherwise agreed:
    • the Supplier will make the Goods available for collection at the Supplier’s Warehouse; and
    • the Client agrees to collect the Goods from the Supplier’s Warehouse and must make arrangements (with suitable freight service providers) for the transport of the Goods from the Supplier’s Warehouse to the Destination Address,

on or around the date for delivery as specified in a Quote or on such other date as agreed by the parties. The Supplier will use reasonable endeavours to work with such contracted freight service providers.

  • The Client will be solely responsible to make payment of all transportation and delivery costs associated with the delivery of the Goods to the Destination Address with the freight service provider, unless otherwise agreed in writing.
  • If the Supplier agrees to arrange the transport of the Goods, then the Client must pay all transportation and delivery costs associated with the delivery of the Goods to the Destination Address at the same time as payment for the relevant Quote is made or at other times requested by the Supplier. The cost for transportation and logistics stated in a Quote or otherwise advised by the Supplier is indicative only and may be varied by the Supplier upon giving the Client notice. A change in the transportation and delivery costs does not entitle the Client to dispute payment of such costs. The Client must accept delivery of the Goods at such time delivery is tendered.
  • Delivery of the Goods to a third party nominated by the Client or to its Personnel is deemed to be delivery to the Client for the purposes of this Agreement.
  • Any timelines provided by the Supplier to the Client in respect of the transportation and delivery of the Goods are estimates only and are non-binding on the Supplier. Delivery and build times of the Goods are only provided once the Goods have passed final quality control processes of the Supplier. The Supplier cannot and is unable to guarantee any timelines for delivery of the Goods. Although the Supplier will use reasonable endeavours to deliver Goods on time, sometimes delays are inevitable and the Supplier will not be responsible for any Losses suffered by the Client in the event of delay. Late delivery of the Goods does not entitle the Client to:
    • refuse to take delivery of the Goods;
    • claim damages; or
    • terminate this Agreement.
  • Delivery of the Goods is completed when:
    • the Client (or its employees or agents) takes possession of the Goods at the Supplier’s Warehouse; or
    • a nominated delivery agent takes possession of the Goods at the Supplier’s Warehouse (in the event that the Supplier arranges delivery on behalf of the Client).
  • If the Client fails to take collect the Goods or take delivery of the Goods on the date for delivery the Supplier will store the Goods at the risk of the Client until delivery takes place again, and may charge the Client for all related costs and expenses (including insurance).

10. CLIENT obligations in relation to the Goods

  • Subject to the other terms of this clause, the Client must:
    • ensure that the Goods are not marketed and sold separately, but integrated and fitted as components in the Client’s Products (Transformed Goods);
    • ensure that the Goods are only to be integrated and fitted in accordance with clause 1(a) by such persons qualified to do so;
    • only sell the Transformed Goods to third parties on terms that are compliant with Applicable Laws and on terms that are consistent with this Agreement;
    • not substitute any of the parts of the Goods which are to be or can be included as components in the Client’s Products with products supplied by a third party; and
    • when marketing the Transformed Goods, not deface, alter or interfere in any way with any of the Supplier’s markings on the Goods (that form part of the Transformed Goods).

11. PERSONAL PROPERTY SECURITIES

  • The Client acknowledges and agrees that notwithstanding any other provision of these Terms:
    • the PPSA applies to any performance of Services of any kind and the supply of Goods by the Supplier to the Client;
    • the Goods are used by the Client only for commercial purposes and are not used by the Client for personal, domestic or household purposes;
    • the Goods the Client is receiving from the Supplier are not to be used as inventory;
    • by agreeing to and/or accepting or adopting these Terms the Client grants to the Supplier:
      1. a purchase money security interest in the Goods; and
      2. a security interest over all present and after-acquired property of the Client (“Client’s Property”),

to secure the Supplier’s interest in the Goods and all moneys owing or payable by the Client under these Terms and any other monies payable by the Client to the Supplier from time to time on any account whatsoever;

  • if a purchase money security interest is not able to be claimed by the Supplier in respect of the Goods for any reason, the Supplier will have a security interest in the Goods as the case may be;
  • the Client agrees that the Supplier’s security interest in the Goods and the Client’s Property covered by these Terms may be registered on the PPS Register and the Client agrees to do all things necessary and required by the Supplier to effect registration of the Supplier’s security interest on the PPS Register in order to give the Supplier’s security interest the best priority possible and anything else the Supplier requests the Client to do in connection with the PPSA without delay;
  • the Client warrants that all information provided by the Client to the Supplier, including but not limited to the Client’s details, including the entity, name, ACN or ABN and address set out in the Quote is correct in all respects and must not change its name, address or other details set out in the Quote without providing the Supplier with at least 20 business days prior written notice;
  • the Client unconditionally and irrevocably appoints the Supplier as its attorney to do any of acts and matters set out in this clause 11 in the event that the Client fails, delays or declines to execute such documents or do such acts;
  • the Client agrees that it will not grant a security interest or other encumbrance in the Goods whether under the PPSA or any other law to a third party unless it has obtained the prior written consent of the Supplier, which the Supplier may refuse to provide or grant in its absolute and unfettered discretion. The Supplier may request, and the Client must provide any information that the Supplier requires, acting reasonably, in order to fully consider whether to grant its consent;
  • the Supplier’s security interest in the Goods and the Client’s Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Goods and/or the Client’s Property by the Client;
  • it has received value as at the date of provision of the Services and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to the Supplier under these Terms;
  • the Goods are located in Australia at the date of the supply of the Goods and the Client warrants that the Goods will remain located in Australia for the duration of these Terms;
  • neither the Supplier nor the Client will disclose any information to any interested person unless required to do so under the PPSA;
  • the Client waives its right under the PPSA:
    1. to receive a copy of any verification statement, financing change statement, or any notice that the Supplier intends to sell the Client’s Property or to retain the Client’s Property on enforcement of the security interest granted to the Supplier under these Terms or any other notice under the PPSA unless the notice is required to be given by the PPSA and cannot be contracted out of;
    2. to object to a proposal by the Supplier to dispose of or purchase or retain the Goods and/or the Client’s Property in satisfaction of any obligation owed by the Client to the Supplier;
  • to receive a statement of account following the sale of the Client’s Property; or
  1. to redeem the Client’s Property;
  • will not give (or allow any person to give) to the Supplier a written demand requiring the Supplier to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and
  • a default under any other security agreement under which it has granted a security interest to any other party in respect of the Goods is deemed to be a breach of these Terms.
  • The parties agree that the Supplier is not required to respond to a request made under Section 275 of the PPSA and that neither party will disclose information of the kind set out in Section 275(1) of the PPSA.
  • Further Supplies/Services

The parties acknowledge and agree that any supply of Goods or performance of Services of any kind by the Supplier to the Client which is not specifically set out in the Quote but for which the Supplier has or later issues a Tax Invoice or any other documentation to the Client is deemed to form part of these Terms and is subject to the terms of these Terms.

  • Enforcement
    • The enforcement provisions contained in these Terms are in addition to any rights available to the Supplier under the PPSA and apply to the maximum extent permitted by law.
    • Without limitation to clause 4(a) and any other provision of these Terms section 125, 129(2), 142 and 143 of the PPSA are contracted out of.
  • Power of Attorney

The Client irrevocably nominates constitutes and appoints the Supplier and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Client on behalf of and in the name of the Client to do all things necessary and sign all such documents as may be necessary to deal with the Goods in accordance with the enforcement provisions of these Terms, the PPSA or otherwise, if the Client is in default of these Terms.

  • Interpretation

A term used in this clause 11 is taken to have the meaning defined under the PPSA.

12. 12 month limited warranty

  • Limited Warranty
    • The Supplier warrants that, subject to compliance with these Terms the Services carried out by the Supplier will be free of any defects for a limited period of 12 months from the date the Services are supplied by the Supplier (Warranty Period).
    • This limited express warranty is in addition to any rights the Client may have under the ACL.
    • In order to make a claim under this clause the Client must inspect the provision of the Services immediately on the completion and must provide notice of any defective Services:
      1. in the case of a defect that is apparent on normal visual inspection within the earlier of one business day of receipt; or
      2. in the case of a latent defect, within a reasonable time of the latent defect having become apparent and within the Warranty Period.
    • Upon such notification of defective Services, the Client must provide any photographic evidence requested by the Supplier; and allow the Supplier to inspect the Services supplied to determine whether they are defective.
    • If the Client is aware or ought reasonably to be aware that the Services are defective for any reason, then the Client must take all necessary steps to mitigate any Loss. The Client must not attempt to repair any Services itself except where directed by the Supplier in writing. Any replacement of parts or repairs to the Goods must be authorised by the Supplier and must be performed by the Supplier or a certified third-party. Any unauthorised fitting of parts or accessories to the equipment will not be covered by warranty.
    • Except as required by law, for each Service that is deemed defective in accordance with this clause, the Supplier’s liability will be limited to the supplying of the Services again or the payment of the cost of having the Services supplied again (to remedy such defect) at the Supplier’s sole discretion and such replacement Services will not be carried out until the Client’s account is paid in full.
    • Where the Supplier attends to check or repair a Service, and the Supplier deems that Service not defective, or otherwise not covered by this warranty, the Supplier may charge the Client a call out fee as specified by the Supplier (based on its current rates) for having one of its Personnel attend the site.
    • Subject to the terms of this clause, the Services will only be dealt with in accordance with this clause provided that:
      1. the Client has complied with the other terms of this clause;
      2. the Supplier has agreed (in its reasonable opinion) that the Services are defective;
  • the Goods are returned (if necessary) as soon as possible to the Supplier; and
  1. the returned Goods (if necessary) are accompanied by all original delivery documentation.
  • Notwithstanding any other clause in these Terms, to the extent permitted by law the Supplier will not be liable for or required to provide any remedy for any defect or damage:
    1. where such defect or damage is caused or partly caused by or arises as a result of:
      1. the Client’s acts or omissions, including the Client failing to take reasonable steps to prevent them from becoming defective or the Client failing to properly use, assemble, install, service or maintain the Services in accordance with the Supplier’s instructions or best industry practice or any other obligations set out in these Terms;
      2. any third party actions including (without limitation) interference by a third party trade;
      3. the Supplier following any instructions supplied by the Client, including any Plans supplied by the Client;
      4. the Goods not being stored or otherwise used in accordance with the Supplier’s instructions;
      5. the Goods being subject to abnormal conditions including without limitation harsh environments, corrosive environments, exposure to heat, temperature, pressure, stress, fire and/or exposure to moisture or high humidity;
      6. misuse, abuse, wilful damage, negligence, or abnormal storage or working conditions, fair wear and tear or normal deterioration of weathering from the elements;
      7. any event, accident or circumstance outside the reasonable control of the Supplier;
    2. where the Goods have been repaired, altered or modified by someone else other than the Supplier or an authorised repair agent of the Supplier or repaired within the consent of the Supplier;
  • where the Goods have been used for a purpose apart from the purpose for which it was designed and manufactured;
  1. where such damage is a normal maintenance that is the Client’s responsibility;
  2. where unauthorised parts or accessories have been used with the Goods;
  3. where any damage caused by exposure to air pollution, harmful chemicals;
  • where the damage is to the powder coating of the Goods or any packaging.
  • The Client is solely responsible for ensuring that the provision of the Services are suitable or adequate for its purposes.
  • Exclusion of liability

Notwithstanding any other clause in these Terms, the Supplier will only be responsible for defects in the Services and Goods that the Supplier supplies.

  • Australian Consumer Law

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, 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.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

  • Transportation of Goods

Where the Client arranges for the transport and logistics of the Goods, the Client takes sole responsibility of such, and the Supplier expressly excludes all warranties with respect to any defect or damage that occurs as a result of the transport and logistics arranged by the Client.

  • Exclusion of liability

Notwithstanding any other clause in these Terms, the Supplier will only be responsible for defects in the Services, Goods and components that the Supplier supplies. To the extent permitted by law the Supplier will not be liable for or required to provide any remedy for:

  • any components or materials supplied by the Client or a third party;
  • any services carried out by third parties.

13. warranties

  • The warranties contained in clause 13(b) are additional to warranties implied by law. Each of the warranties will be read and construed as a separate and independent warranty and will not be limited by reference to each other. All warranties will be valid at all times during the term of these Terms and will be continuing warranties which will survive the termination or expiration of these Terms.
  • The Client warrants to the Supplier that as at the date of these Terms and for the duration of these Terms:
    1. the Plans are true and correct and do not contain errors or defects and contain all information that any reasonable person in the Supplier’s position would need to know in order to quote and supply the Services;
    2. the information contained in these Terms are true and correct and it has disclosed all relevant information to the Supplier to assess the credit-worthiness of the Client;
  • it has the legal right and power to enter into these Terms;
  1. the execution, delivery and performance of these Terms by the Client has been duly and validly authorised by all necessary corporate action on its part;
  2. these Terms are a valid and binding agreement on the Client, enforceable in accordance with its terms;
  3. the Client is not suffering an Insolvency Event and no Insolvency Event is imminent; and
  • it has the capacity to make the payment in accordance with these Terms.

14. indemnitY

  • Except to the extent caused or contributed to by the breach of these Terms by the Supplier, the Client indemnifies the Supplier against, and holds the Supplier harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Supplier arising out of or in connection with:
    • the Client’s breach or negligent performance or non-performance of these Terms, including any failure to pay any fees on time;
    • any claim made against the Supplier or the Client by a third party arising out of or in connection with:
      1. the provision of the Services or these Terms;
      2. the reliance by the Client or a third party on the Services; or
  • defective Services,

to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of these Terms by, or is attributable to the acts or omissions of, the Client or the Client’s Personnel;

  • the Client’s use of the Services;
  • the Client’s violation of any Applicable Law;
  • any event or cause, beyond the reasonable control of the Supplier;
  • any reliance by the Client or a third party on the Services or any advice, information or deliverable provided in connection with the provision of the Services and/or these Terms;
  • the enforcement of these Terms; and
  • any act, omission or wilful misconduct of the Client or the Client’s Personnel (including any negligent act or omission).
  • The Client must make payments under this clause:
    • in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
    • in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
  • If a payment due from the Client under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Supplier will be entitled to receive from the Client such amounts as will ensure that the net receipt, after tax, to the Supplier in respect of the payment is the same as it would have been were the payment not subject to tax.
  • Except where expressly stated to the contrary in this Agreement, the rights of a party under this clause are in addition to any other rights available to that party whether those rights are provided for under this Agreement or by law.
  • It is not necessary for the Supplier to incur expense or make payment before enforcing a right of indemnity under this clause.
  • The indemnities in this clause:
    • are continuing obligations of the Client, independent from its other obligations under these Terms and survive termination or expiry of these Terms; and
    • are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.
  • The Supplier’s liability under this indemnity is limited under clause 16.

15. Disclaimer

  • Subject to the other terms of these Terms, the Supplier provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on the Services at its own risk.
  • Without limiting the other terms of this clause, the Client acknowledges and agrees that:
    • any advice, recommendation, information, assistance or service provided by the Supplier in relation to the Services supplied is given in good faith, is based on the Supplier’s own knowledge and experience and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services. Such advice, recommendations, information and assistance is followed or acted upon entirely at the Client’s own risk, and accordingly the Supplier shall not be liable for any such advice or recommendation;
    • the Supplier reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Supplier’s specification, which do not materially affect their quality or performance;
    • that Goods supplied may
      1. exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
      2. mark or stain if exposed to certain substances; and
  • be damaged or disfigured by impact or scratching.

16. exclusion and limitation of liability

  • The Supplier excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms to the maximum extent permitted by law.
  • Without limiting the generality of clause 1, the Supplier expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:
    • any act or omission of the Client or its Personnel, including any delay caused by the Client or its Personnel;
    • any problem caused by misuse, abuse, wear and tear or abnormal movement; and
    • any defect in, or problem caused by, materials or goods supplied by the Client or its Personnel.
  • Subject to the other terms of this clause, the Supplier’s total maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with the supply of services under these Terms, including any breach by the Supplier of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by the Client to the Supplier under these Terms in the 12-month period preceding the matter or event giving rise to the claim.
  • Nothing in these Terms are intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Supplier in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
  • If the Supplier is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, or is otherwise liable for any matter that cannot be excluded, the Supplier’s total liability to the Client for that failure is limited to, at the option of the Supplier the costs of the resupply of the relevant Services to which the liability relates or the payment of the costs of resupply of the relevant Services.
  • Without limitation to the other terms of these Terms, the Supplier excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential Loss arising under or in connection with these Terms.
  • Notwithstanding anything else in this clause, the Supplier’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client, or the Client’s Personnel.
  • Where the Client is or may be entitled to recover from a third party any sum in respect of any matter or event that could give rise to a claim under this Agreement, the Client must:
    • use its best endeavours to recover that sum before making the claim;
    • keep the Supplier at all times fully and promptly informed of the conduct of such recovery; and
    • reduce the amount of the claim to the extent that sums are recovered.
  • The Supplier will not be liable for any claim under or in relation to or arising out of this Agreement including a breach of any warranty unless:
  • the Client has first made a claim under any insurance policy held by the Client that may cover that claim; and
  • that claim has been denied in whole or partly by the relevant insurer.
  • If the Client recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of this Agreement and that amount is less than the loss or damage incurred by the Client, the amount of the shortfall will be the amount of the Client’s loss for the purposes of this Agreement.
  • The Supplier is not liable in respect of a claim unless the Client has notified the Supplier of the claim as soon as practicable after it becomes aware of it.

17. CANCELLATION & termination

  • The Supplier may cancel all or part of any order to which these Terms applies or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for the Services which are cancelled. The Supplier shall not be liable for any Loss or damage whatsoever arising from such cancellation.
  • The Supplier may in its absolute discretion, by written notice to the Client, immediately terminate these Terms or one or more Quotes (and shall have no liability for any Loss suffered by the Client due to the termination):
    • if the Client fails to make payment of any amount due under these Terms on time or otherwise in accordance with these Terms;
    • if the Client suffers an Insolvency Event;
    • if the Client breaches these Terms or a Quote and fails to rectify the breach within 7 days of being given a notice to do so; or
    • in the event of Force Majeure (such as if there are issues with the weather and the Supplier is unable to supply the agreed Services, however the Supplier is not bound to terminate if this occurs).
  • The Client may not cancel the Services at any time except where expressly permitted by these Terms.
  • The Client may terminate these Terms if the Supplier breaches the terms of these Terms and fails to rectify the breach within 14 days of being given a notice to do so. The Client may not otherwise terminate these Terms.
  • Upon termination of these Terms the Client shall be liable to pay to the Supplier for all Services supplied by the Supplier up until the date of termination, and such amounts shall be a debt immediately due and owing. In the event that the Supplier terminates these Terms except for due to an event of Force Majeure, then the Client will also be liable to pay the Supplier all amounts which would have otherwise been payable under the Quote had it not been terminated and such amount shall be a debt immediately due and owing.
  • The termination of a Quote does not affect any other Quote/s which shall continue.
  • The rights and remedies of the parties contained in this clause are in addition to any other rights and remedies by law, in equity or under these Terms.

18. IntelLectual Property

  • Unless otherwise agreed in writing by the Supplier and subject to clause 2, where the Supplier has designed, drawn or developed the Plans for the Client (whether alone or with the assistance of the Client) without charge, then the Supplier shall retain ownership of such Plans. Unless otherwise agreed in writing, the Supplier will have the right to use, resell, distribute and commercialise the Plans (including the products manufactured by reference to the Plans).
  • Where the Client is charged for the design of Plans, then the Client may request to retain ownership of those Plans subject to the following terms:
    • the Supplier will provide a quote to the Client for the design service charged at the Supplier’s then current service rates (which at the date of these Terms is a flat fee of $500+GST plus $250+GST per hour for design);
    • the Client must make payment of applicable costs as quoted by the Supplier for such design service; and
    • the Client must satisfy the minimum service order values as set out in the quote (including that the Client must use the Supplier’s laser cutting/folding fabrication services to a minimum value of $5,000+GST).

Ownership of the Plans will not be assigned to the Client until such time as all quoted fees are paid by the Client to the Supplier, and all minimum service order values (as set out in the quote) are satisfied.

  • Where the Client has designed, drawn or developed the Plans by itself then the Client shall remain the owner of such Plans, and grants the Supplier the right to use such Plans for the purposes of providing the Services under these Terms. The Supplier warrants that it will not otherwise use the Plans owned by the Client except in connection with the Services.
  • The Client warrants that:
    • all Plans given to the Supplier will not cause the Supplier to infringe any intellectual property rights or third party rights of any third party nor give rise to loyalties;
    • the Client owns all necessary rights to grant the Supplier the right to use the Plans as required by these Terms.
  • The Client agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
  • The Client agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Client.

19. FORCE MAJEURE

  • The Supplier will not be in breach of these Terms or liable to the Client for any Loss incurred by the Client as a direct result of the Supplier failing or being prevented, hindered or delayed in the performance of its obligations under these Terms where such prevention, hindrance or delay results from an event, circumstance or cause beyond the Supplier’s reasonable control.
  • If a Force Majeure Event occurs, the Supplier must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
  • On providing the notice in clause 2, the Supplier will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Supplier must continue to use all reasonable endeavours to perform those obligations.
  • The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

20. no assignment

  • The Client must not transfer or assign its rights under these Terms to anyone else, without the prior written consent of the Supplier, which may be granted or withheld by the Supplier in its sole, absolute and unfettered discretion. The Client must provide any information the Supplier requires to consider whether to grant its consent.

21. Notices

  • All notices authorised or required under these Terms to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party’s Address for Service or as the case may be at such other address as a party may from time to time notify to the other.
  • The following shall constitute proof of receipt:
    • proof by posting by registered post; or
    • proof of dispatch by email.
  • Receipt of a notice given under these Terms will be deemed to occur:
    • in the case of a communication sent by pre-paid registered post, on the third business day after posting;
    • in the case of an email, on the business day immediately following the day of dispatch.
  • If a notice is sent via post, it must also be sent via email.

22. GENERAL

  • Variation

An amendment or variation of any term of these Terms must be in writing and signed by each party.

  • No Waiver
    • No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
    • Words or conduct referred to in clause 2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
  • Counterparts

These Terms may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute these Terms by signing any counterpart. The date on which the last counterpart is executed is the date of these Terms. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.

  • Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms.

  • Severability
    • If the whole or any part of a provision of these Terms are or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
    • Clause 5(a) does not apply if the severance of a provision of these Terms in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms.
  • No Merger

On completion or termination of these Terms, the rights and obligations of the parties set out in these Terms will not merge and any provision that has not been fulfilled remains in force.

  • Survival

Any clause which by its nature is intended to survive termination or expiry of these Terms will survive such termination or expiry.

  • Further Action

Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and the transactions contemplated by these Terms.

  • Time of the Essence

Time is of the essence in these Terms in respect of any date or time period and any obligation to pay money.

  • Relationship of the Parties

Nothing in these Terms gives a party authority to bind any other party in any way. Nothing in these Terms imposes any fiduciary duties on a party in relation to any other party.

  • Remedies Cumulative

Except as provided in these Terms and permitted by law, the rights, powers and remedies provided in these Terms are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms.

  • Entire Agreement

These Terms states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

  • No Reliance

No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms.

  • Governing Law and Jurisdiction

These Terms is governed by the law in force in the State. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms.

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