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Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
In these terms and conditions, unless the context otherwise requires:
a) “Buyer” means the Person named in the Sales Invoice or Quotation.
b) “Goods” means the goods provided by the Seller to the Buyer.
c) “Quotation” means the form of quotation submitted by the Seller to the Buyer which are subject to these terms and conditions.
d) “Sales Invoice” means the sales invoice issued by the Seller to the Buyer which is subject to these terms and conditions.
e) “Seller” means WORK ARENA PTY LIMITED, subject to clause 2(h).
f) The expression “Person” includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.
g) Words importing the singular shall include the plural (and vice versa).
2. QUOTATIONS
a) Unless previously withdrawn, a Quotation is valid for thirty (30) days or such other period as stated therein. A Quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise therefrom until the Buyer’s order has been accepted by the Seller in writing and the Buyer’s deposit where required is paid in accordance with clause 3(b) .
b) Any special conditions specified as such on a Quotation or Sales Invoice shall, to the extent they are inconsistent with these terms and conditions, take precedence over these terms and conditions.
c) The Seller shall not be bound by any conditions attaching to the Buyer’s order or acceptance of the Quotation and, unless such conditions are expressly accepted by the Seller in writing, the Buyer hereby acknowledges that such conditions are expressly excluded.
d) Unless otherwise stated in writing by the Seller, prices quoted exclude delivery, installation, insurance in transit, packaging, crating, handling charges, agents’ charges and any other charges. Any charge, duty, import, sales tax or other expenditure which is not applicable at the date of Quotation but which is subsequently levied upon the Seller in relation to the Quotation as a result of the introduction of any legislation, regulation or governmental policy, shall be to the Buyer’s account.
e) Every Quotation is subject to and conditional upon obtaining any necessary import, export or other license.
f) Photographs, drawings, illustrations and dimensions and any other particulars accompanying, associated with or given in descriptive literature or a catalogue, approximate the goods offered but may be subject to alteration without notice.
g) Any performance data provided by the Seller or a manufacturer is an estimate only and should be construed accordingly.
h) Where a Quotation expresses that WORK ARENA PTY LIMITED acts as an agent for a particular person, the Seller in these Terms and Conditions refers to the said person alone.
3. TERMS OF PAYMENT
a) Unless otherwise stated in writing by the Seller, Terms of Payment are 14 days from the date of Invoice.
b) A Deposit and Progress Payments in accordance with the Quotation may be specified by the Seller. These will be invoiced and become payable in accordance with clause 3(a), unless expressly varied in writing in accordance with these terms and
4. SHIPMENT AND DELIVERY
a) Upon acceptance of an order the Seller may confirm the period of shipment or delivery and must notify the Buyer of any variation from the quoted period. Unless the Buyer objects in writing within seven (7) days of such notification to the Buyer, the period of shipment or delivery notified to the Buyer will be the contractual period for shipment or delivery. Time shall not be considered to be of the essence of the contract. A quoted period for delivery will only commence on the date the Buyer approves the Seller’s drawings and finishes schedules. The Seller may extend the quoted period if the Buyer requests any variation to the drawings and finishes schedules after that date.
b) The Seller will not accept any liability or responsibility for delays in the delivery of the Goods.
5. DELIVERY AND TITLE
a) Delivery shall be deemed to be made when the Goods are delivered to the place specified in the Quotation.
b) Title to the Goods and to each part thereof shall not be transferred to the Buyer (or any financial institution facilitating the acquisition of the Goods by the Buyer) until the total purchase price and any other sums due to the Seller under these Terms and Conditions, including any late payment charge payable hereunder, has been duly paid.
c) Payment shall be deemed not to have been made until after any moneys payable otherwise than by cash have been duly collected by the Seller.
d) Unless and until such payment is so made:
(i) the Buyer will hold the Goods and any moneys received by the Buyer in respect of the sale or disposal of them (or if any part or the whole thereof has been damaged or destroyed, any insurance or other compensation moneys received) on trust for the Seller; and
(ii) the Buyer shall store the Goods or hold such moneys in such manner as to show clearly that they are the property of the Seller.
d) Unless and until such payment is so made:
(i) the Seller’s goods are stored to enable the Seller to inspect the goods and/or, if the Buyer is in Default under clause 11 of these Terms and Conditions, reclaim the goods and the Buyer hereby indemnifies and holds harmless the Seller in respect of any action taken pursuant to the rights of the Seller hereunder;
(ii) the Buyer’s records pertaining to the goods are held, to inspect and copy such records.
f) The risk in the Goods shall pass to Buyer upon delivery. Buyer accepts the responsibility for insurance from that time, notwithstanding the Buyer does not become the owner of the Goods until payment in full.
g) Until final payment is made in accordance with these Terms and Conditions neither the Buyer nor any Administrator appointed pursuant to any section of the Corporations Law, shall move any part of the Goods from the location to which it was delivered by the Seller, nor shall it sell or contract to sell, mortgage, charge, lease or otherwise dispose of the same or part with possession of the same.
h) If the Buyer delays delivery and installation of the Goods for any unreasonable reason, the Seller shall be entitled to charge a reasonable fee for storage of the Goods in respect of each day that the delivery and installation of the Goods is delayed past the agreed delivery date. If the Seller attempts delivery of the Goods and it is discovered that the delivery site is not ready for installation of the Goods and the Seller is required to return the Goods back to its own premises and subsequently re-deliver the Goods to the Buyer, the Seller shall be entitled to charge a reasonable fee to recover the additional transport costs.
6. INSPECTION AND ACCEPTANCE
The Buyer shall inspect all goods upon delivery and shall within 14 days of delivery give notice to the Seller of any matter or thing in which the Buyer alleges that the goods are not in accordance with the Buyer’s order. Failing such notice and, to the extent permitted by statute, the goods and their condition shall be deemed to have been delivered and accepted by the Buyer.
8. EXCLUSIONS
“a) In the event that this Agreement constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974, as amended, or relevant State or Territory legislation nothing contained in this Agreement excludes, restricts, or modifies any condition, warranty or other obligations where to do so would be unlawful, in which event the Seller’s sole liability for breach of any such condition, warranty or other obligation, shall be limited to: “
in relation to goods:
(i) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
(ii) the repair of the goods or payment of the cost of having the goods repaired; and
in relation to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again
as in each case the Seller may elect the remedy to be applied.
Subject to this clause and to the extent permitted by law, all conditions and warranties which would or might otherwise be implied in this Agreement, whether by operation of statute, inference from circumstances, industry practice or otherwise, are hereby excluded.
b) Except as otherwise expressly provided herein and to the extent permitted by law, all warranties, representations, promises, conditions or statements regarding the Goods, whether express or implied, and whether statutory or otherwise including, without limiting the generality of the foregoing, warranties, representations, promises, conditions or statements as to the merchantability, suitability or fitness for any purpose, profitability or any other attributes or consequences of or benefits to be obtained from or in the course of the performance by the Seller of its obligations hereunder, except as expressly set out herein or in any attachment hereto, are hereby expressly excluded.
c) Buyer agrees and declares for the benefit of the Seller that it has relied upon Buyer’s own skill and judgment in entering into this Agreement, and has not relied on any statement or representation given by any person on behalf of the Seller.
9. DEFAULT OF BUYER
a) If the Buyer defaults by non-payment or non-performance of any obligations under this agreement or if any proceedings under any bankruptcy, liquidation or insolvency laws are commenced by or against the Buyer, the Seller will have the right to exercise any one of the following remedies:
(i) declare all unpaid charges to be immediately due and payable;
(ii) require the Buyer to make available all documentation and to assemble such parts of the Goods provided hereunder which has not been paid for and to make the same available at a time and place reasonably convenient to the Seller;
(iii) take possession without demand or notice (the right to demand or notice the Buyer hereby expressly waives) of all parts of the Goods as yet unpaid for;
(iv) sell, lease or otherwise dispose of the Goods publicly or privately;
(v) terminate this Agreement in whole or in part; and/or
(vi) pursue any other remedies existing at law or in equity.
b) In addition to any other payment obligations hereunder, the Buyer agrees to pay to the Seller all costs and expenses including reasonable legal fees and costs, incurred by the Seller in exercising any of its rights and remedies.
10. PATENT INDEMNITY
The Seller indemnifies the Buyer against any legal action arising out of, or in any way connected with, any infringement of a patent, registered design, copyright, etc. The Buyer warrants that any design furnished by the Buyer to the Seller will not cause the Seller to infringe any patent, registered design, copyright, etc.
11. COPYRIGHT OF DESIGN
The Buyer agrees that any design, drawing, investigations etc. carried out by the Seller specifically associated with the subject of the quotation remains the intellectual property of the Seller.
12. CONFIDENTIALITY
The Seller undertakes not to disclose at any time any commercial or technical details associated with the purchase order, and to keep such material strictly confidential.
13. DISPUTES
Any disputes arising in relation to this purchase order which cannot be amicably settled may be referred by either party to the Chief Executive of The Australian Commercial Disputes Centre to nominate a mutually agreed arbitrator. The decision of such arbitration shall be binding on both parties.
14. SITE WORK CONDITIONS
a) Access: The Buyer undertakes to provide access to the site as necessary within good time. The Seller is to give reasonable notice of time of commencement on site. The Seller is to advise immediately of any problems with access to the site.
b) Insurances: The Seller undertakes to ensure that all persons in its employ are covered by appropriate workers’ compensation insurance. The Seller undertakes to provide public liability insurance to the Buyer’s satisfaction. Where required in the purchase order, the Seller undertakes to provide full, comprehensive insurance of the works until acceptance.
c) Site Facilities: Site facilities as described on the face of the order will be provided by the Buyer. It is the responsibility of the Seller to check that such are satisfactory and to make arrangements for any further facilities required. Site tests will be carried out as soon as practicable after erection and at least seven days notice of readiness for test it to be given by the Seller.
15. FORCE MAJEURE
If in the performance or observance of its obligations the Seller is prevented, restricted or affected by reason of a force majeure including strike, lock out, industrial dispute, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of the Seller, the Seller may, in its absolute discretion give prompt notice of such cause to the Buyer whereupon the Seller is excused from such performance or observances to the extent of such prevention, restriction or affectation.
16. VARIATIONS AND ENTIRE AGREEMENT
a) The Buyer and Seller may only vary these terms and conditions of Quotation and Sale in writing signed on behalf of the Buyer and a duly appointed director of the Seller.
b) These terms and conditions and any variations made in accordance with this clause constitute the entire agreement between the parties.
17. GOVERNING LAW
These terms and conditions and any contract including them shall be governed by the law of the State or Territory in which the Seller accepts the Buyer’s order and the Seller and Buyer submit to the jurisdiction of the Courts of that State or Territory of Australia.
