Terms and Conditions

FELK EXTRA BAILED GOODS AGREEMENT

Felk Extra Bailed Goods Agreement- Download PDF

FELK TERMS AND CONDITIONS

This is a legal document setting out the terms and conditions upon which FELK Engineering Pty Ltd ACN 605 913 004 trading as FELK Engineering, will provide goods and/or services to you. Please read the Terms below in full. This brief informational summary of features does not form part of, or replace, the Terms.

Under the Terms, to extent we are permitted by law, we limit our liability, including in relation to the provision of goods and services to you and in relation to parts you provide us (if we accept such parts at our discretion), which may potentially reduce compensation amounts or exclude some avenues of compensation. If we accept, at our discretion, parts from you, then you provide us with an indemnity in respect of loss or damage we may suffer arising from a third party claim in connection with such parts. If you leave goods or items (including yachts, boats, jet skis or personal items) (extra bailed good) with the good (such as a trailer or other carrying or towing device) for which we are supplying goods and/or services, then you leave the extra bailed good at your own risk and you assume all liability for the extra bailed good (including any loss or damage (to us, a third party or to the extra bailed good), caused to or by the extra bailed good whether we are negligent or otherwise), and you provide us with an indemnity in respect of such loss or damage. This means that you carry liability for all loss or damage caused by such goods to others, to us or to the extra bailed goods. You also agree that such goods or items may be stored, stationary, moved or in transit, including on public roads and at third party facilities and we recommend that you obtain insurance to cover such circumstances or that the extra bailed goods not left with us.

If you fail to collect your trailer and/or other item 2 days after receiving the final invoice and being informed that the trailer and/or other item is ready for collection, we may commence charging you storage fees of $25.00 per day. If the total cost of goods and services is or exceeds $1,000.00, we may issue an interim invoice for payment of half the estimated purchase price. If you place an order for a custom build or you place an order in respect of 5 or more trailers and/or other items, we may issue one or more interim invoice) before completion of the service or receipt of the goods, including for payment of half the estimated purchase price. If we need to place an order for goods with a third party, we can issue an invoice for payment in full for that good before completion of the service or receipt of the goods. If you cancel an appointment for services without providing us with 24 hours’ notice, or cancel an order for goods that we placed with a third party, then you may be in breach of the contract and we may claim compensation from you in relation to such a service or good, or charge you the purchase price for the good.

The Terms:

DEFINITIONS
1. In this document, the following terms have the following meanings:

Australian Consumer Law means the Australian Consumer Law provided in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Claim means any claims including actions, complaints, debts, demands, dues, proceedings, suits or other legal recourse (whether in contract or tort (including negligence), at law or in equity) and including any causes of action or rights to bring or make any such claim.

Consequential Loss includes (i) any loss of income, revenue, profit or business; (ii) any loss of good will or reputation; (iii) any loss of value of intellectual property; (iv) lost opportunity costs; (v) special or indirect loss or damage; (vi) legal costs and expenses.

Customer means the person or entity placing the Order or any person or entity who purchases the Goods and/or Services from the Supplier.

Custom Order means any Good ordered by a Customer that is specially made for the Customer and/or specially fitted to accommodate an item and/or purpose.

Customer Supplied Parts means any parts, accessories or products sourced and/or supplied by a Customer which the Supplier uses in providing the Services to that Customer including tyres, wheels, foam, hydraulic systems, lighting and any of their component parts.

Customer’s Terms means any terms and conditions provided by the Customer to the Supplier at any time or in any manner, including any printed terms and conditions on the Customer’s Order, or terms and conditions other than these Terms purported by the Customer to apply to the Order.

Estimate means any written or verbal quote estimating the Services, labour costs, Goods and/or materials.

Goods means the products and/or components and/or accessories, including Custom Orders, supplied or to be supplied by the Supplier, including, trailers and actuators.

GST means a goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Invoice means any invoice for or relating to the Goods and/or Services.

Loss means any loss, damage, debt, deficiency, diminution in value, charge, cost, expense, fine, outgoing, penalty or other liability of any kind or character (including legal fees, other professional fees, debt recovery fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all amounts paid in settlement for any claim, complaint, demand, proceeding, litigation, action, or other legal recourse whether under statute, contract, tort or otherwise, but does not include Consequential Loss unless otherwise specified in these Terms.

Order means any offer by the Customer to purchase Goods and/or Services from the Supplier whether written or verbal (includes telephone and online orders).

Purchase Price means the amount listed on the Invoice for Goods and/or Services, as varied in accordance with clause 5.4, and, for the purpose of a security interest or purchase money security interest, includes any credit charges and/or interest payable.

Services means the services supplied or to be supplied by the Supplier, including, services relating to servicing, repairing or building a Custom Order, including custom-made trailers.

Special Buy-In Orders means Goods which are not stocked by the Supplier and require the Supplier to purchase these Goods from a third party.

Supplier means FELK Engineering Pty Ltd ACN 605 913 004.

Supplier’s Agent means the Supplier’s employee, servant, contractor, subcontractor or agent.

Terms means these terms and conditions and, if applicable, any Warranty.

Warranty means the Supplier’s warranty (if any).

1. In these Terms, unless the context otherwise requires:
  1. a reference to writing includes post and email, including email and other communication established through the Supplier’s website (if any);
  2. the singular includes the plural and vice versa;
  3. the meaning of general words is not limited by specific examples introduced by “include”, ”includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
  4. a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms;
  5. a reference to a party to these Terms or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
  6. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
  7. headings are for ease of reference only and do not affect the meaning or interpretation of these Terms.
COMMENCEMENT
1. These Terms commence on the earlier of the Customer signing these Terms, or the Customer receiving an Estimate or placing an Order, each of which constitute acceptance of these Terms by the Customer and apply to all transactions between the Customer and Supplier relating to the provision of Goods and/or Services. The Customer agrees that these Terms prevail over the Customer’s Terms.
ESTIMATE
1. The Customer agrees that the labour costs, material and other costs, and any time frame provided in the Estimate is an estimate only. The Supplier may amend the details of the Estimate verbally or in writing and such amended details supersede prior details in the Estimate or dealings between the parties. The Estimate is valid for 14 days from its original issue and is subject to the availability of, and changes to the cost of, Goods and/or materials.
ORDER
1. The Supplier may accept or reject any Order in its absolute discretion.
2. An Order is accepted when the Customer receives written or verbal acceptance from the Supplier or receives delivery of the Goods and/or Services, whichever occurs first.
PAYMENT
1. The Customer must pay to the Supplier the Purchase Price listed on the Invoice on delivery of the Goods and/or Services.
2. Despite clause 5.1, the Supplier may issue the Customer with an interim Invoice:
  1. for the payment of a Special Buy-In Order any time after the Order is placed by the Customer for payment in full for the Special Buy-In Order;
  2. if the estimated total cost for Goods and/or Services is or exceeds $1,000.00 the Supplier may issue an interim Invoice to the Customer at any time after the Order is placed by the Customer for payment of up to half the estimated Purchase Price for immediate payment;
  3. for a Custom Order, the Supplier may issue an interim Invoice to the Customer for payment of half the estimated Purchase Price for immediate payment and may issue further interim Invoices before completion of the Custom Order;
  4. where an order for Goods and/or Service consists of five or more trailers and/or other items, in addition to any other right of the Supplier to issue interim Invoices, the Supplier may issue interim Invoices to the Customer for immediate payment at various times before the issue of the final Invoice; and
  5. as otherwise informed by the Supplier.
3. All representations made in the Invoice are made on the basis that errors and omissions are excepted.
4. The Supplier reserves the right to vary the Purchase Price and make an additional charge in the event of a variation to the Order for Goods and/or Services (including any Special Buy-In Order), including where the Supplier incurs further costs in the following circumstances:
  1. the Customer providing inadequate, late or incorrect information or materials in relation to the Services, Goods and/or Customer Supplied Parts;
  2. the Supplier agreeing to provide additional Goods not included in the Order or Estimate, including alterations to the Goods to be supplied or additional Goods due to the Customer’s request for additional Services;
  3. the Supplier agreeing to provide additional Services not included or specifically excluded in the Order or Estimate, including additional or altered Services or visits to or by the Customer with the Supplier; and
  4. if the Customer cancels a Service and/or Good, any Loss resulting from the cancellation that is incurred by the Supplier,

and notice will be provided verbally or in writing by the Supplier within a reasonable time.

1. Unless the Supplier otherwise notifies the Customer in writing, the price charged for the Goods and/or Services is exclusive of any GST, sales tax, excise, duty and/or any identified or new taxes that come into existence after the effective date of these Terms.
2. Where any GST, sales tax, excise, duty and/or any identified or new taxes apply to any supply made under these Terms, the Supplier may recover from the Customer an additional amount on account of those taxes and the Supplier will deliver to the Customer a compliant Invoice.
3. The Supplier does not accept cheques as payment for the Purchase Price unless otherwise agreed in writing.
4. Unless agreed in writing by the Supplier, the Customer must not withhold payment of the Purchase Price due to a dispute or any other query arising in respect of the Order, the Purchase Price or any other matter connected with these Terms.
5. The Supplier may, in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
FAILURE TO PAY, STORAGE AND LIEN
1. If an amount owing by the Customer remains unpaid for a period of 2 days after the Supplier provides the final Invoice for the Goods and/or Services connected with a trailer and/or other item and advises the Customer the trailer and/or other item is ready for collection, the Supplier may charge the Customer $25.00 excluding GST per day to store the Customer’s trailer and/or other item until any amount owing to the Supplier is paid in full and the trailer and/or other item is collected.
2. If the Customer is in default for the failure to pay debts as and when they are due:
  1. the Customer must also pay on demand to the Supplier interest on all overdue amounts owed by it to the Supplier at the rate equal to the interest rate set out in these Terms.
  2. all costs and expenses associated with collecting overdue amounts (for example, where the collection of the debt is referred to a debt collector or a law firm, or in respect of legal proceedings), including debt collection fees, commission on collection, legal fees, interest, storage charges and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these Terms.
3. In addition to any lien existing at common law, the Customer agrees the Supplier can exercise a lien on the Customer’s trailer and/or other item connected with the supply of the Goods and/or Services until the Customer has paid all amounts owing by the Customer to the Supplier.
SUPPLY OF GOODS AND CUSTOMER SUPPLIED PARTS
1. The Supplier supplies Goods in connection with the supply of the Services and supplies Goods separately to the supply of Services.
2. Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Goods at specific times requested by the Customer during the term of these Terms.
3. The Supplier may agree to provide additional Goods not included or specifically excluded in an Order or Estimate, in this event, the Purchase Price may be varied in accordance with these Terms.
4. The Customer acknowledges and agrees that the Supplier may, in its absolute discretion, refuse to fit any goods supplied by the Customer including parts or products sourced and/or supplied by the Customer and used by the Supplier in providing Services.
5. If the Supplier agrees to fit the Customer Supplied Parts, the Customer warrants that any Customer Supplied Parts are free from any pre-existing defects or faults and are suitable for the supply of Services and the Customer acknowledges and agrees:
  1. the Supplier is not the supplier of the Customer Supplied Part for the purpose of the Australian Consumer Law and if the Supplier offers a Warranty, then the Warranty does not apply to the Customer Supplied Parts;
  2. fitment of the Customer Supplied Parts is conditional on the Customer entering into a separate deed regarding supply and fitment of Customer Supply Parts, unless the Supplier waives such condition in the Supplier’s absolute discretion;
  3. if the Customer Supplied Part is being delivered to the Supplier’s premises, or needs to be returned to the supplier of the Customer Supplied Part, the Customer must arrange such delivery and is liable for all transport charges, insurance, damage to the Customer Supplied Part and damage to the Supplier’s property in connection with such delivery; and
  4. to the extent permitted by law the Customer indemnifies the Supplier from and against all existing and future Claims of whatsoever nature, wherever and however arising, known or unknown and by any third party which arises out of or in connection with the Customer Supplied Parts.
6. Except as required by law, the Supplier will be under no obligation to accept Goods returned for any reason.
7. Unless otherwise agreed in writing, Customer will be liable for third party postage or transport costs where Goods are provided to the Customer by way of third party postage or transport.
8. Without limiting any rights that may be available under the Australian Consumer Law that are not lawfully excluded under these Terms, if the Customer is seeking to make a claim pursuant to a third party manufacturer warranty, the Good may be sent back to the manufacturer for inspection and the remedy in relation to that claim will depend on the decision of the third party manufacturer.
PROVISION OF SERVICES
1. The Supplier does not warrant that it will be capable of providing the Services at specific times requested by the Customer during the term of these Terms.
2. Subject to otherwise complying with its obligations under these Terms, the Supplier will exercise its independent discretion as to the most appropriate and effective manner of providing the Services and of satisfying the Customer’s expectations of those Services.
3. The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation or right of the Supplier arising out of or pursuant to these Terms, an Estimate or Order.
4. The Supplier may agree to provide additional Services not included or specifically excluded in the Order or the Estimate, in this event, the Purchase Price may be varied in accordance with these Terms.
DEFAULT
1. The Customer will be in default if:
  1. the Customer breaches these Terms;
  2. payment for the Goods and/or Services has not been received by the Supplier in full by the due date for payment;
  3. the Customer becomes insolvent or unable to pay the Customer’s debts as and when they are due and payable;
  4. the Customer, being an individual, commits an act of bankruptcy or becomes an insolvent under administration;
  5. the Customer, being a body corporate, becomes an externally-administered body corporate or any proceedings are filed or steps taken that may result in the Customer becoming an externally-administered body corporate.
2. Without prejudice to any other rights of the Supplier, if the Customer defaults, the Supplier may do one or more of the following:
  1. without notice to the Customer, make all money owing by the Customer to the Supplier immediately due and payable (including any costs incurred as a result of trying to recover the outstanding amount);
  2. treat the whole of these Terms, any part of these Terms and/or any other contract with the Customer as repudiated and sue for breach of contract;
  3. refuse to supply any further Goods and/or Services to the Customer;
  4. cancel all or any part of any Order that remains unfilled (and make all amounts owing, whether or not due for payment, immediately payable);
  5. without notice to Customer, commence taking steps to collect the overdue amount, including, but not limited to, debt collection action and any associated legal proceedings;
  6. if the Customer is in default for the failure to pay debts as and when they are due and payable, charge interest on any money owing until payment at the rate of 10% per annum calculated daily.
RISK AND TITLE
1. Legal and equitable title to the Goods will remain with the Supplier and will not pass to the Customer until such time as full payment in cleared funds is made to the Supplier for the Goods and for any and all monies owed by the Customer to the Supplier in respect of the Goods and related Services. Until title to such Goods passes, the Customer holds the Goods as bailee for the Supplier and that a fiduciary relationship exists between the Customer and the Supplier in respect of those Goods.
2. Risk in the Goods passes to the Customer on the Customer making payment in accordance with these Terms, on the Goods leaving the Supplier’s premises or on the Customer collecting the Goods, whichever is the earlier.
LIMITATION OF LIABILITY
1. Any limitation of liability in this clause and/or in these Terms does not apply if it would restrict, modify or exclude the Customer’s rights in a way that is not permitted under Australian Consumer Law or any other applicable law.
2. To the extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantable quality, description, quality, suitability or fitness of the Goods, Services or Customer Supplied Parts for any purpose or as to design, assembly, installation, materials or workmanship or otherwise is expressly excluded.
3. The Customer will ensure when placing Orders that there is sufficient information to enable the Supplier to execute the Order. To the extent permitted by law, the Supplier takes no responsibility if the Customer places an Order for incorrect Services, Goods or product type, an Order for an incorrect quantity and/or if the specifications are wrong or inaccurate and the Customer will be liable for the expenses incurred by the Supplier for any work required to rectify and/or resupply the Order.
4. The Customer agrees that if it is aware (or should be aware) that the Goods and/or Services the subject of an Order are for a particular purpose, or are required to possess special characteristics, the Customer will clearly specify that purpose or those characteristics in any such Order. However, to the extent permitted by law:
  1. 11.4.1.the Customer is responsible for ensuring the Goods, Services or Customer Supplied Parts are fit for the Customer’s intended purpose; and
  2. 11.4.2.the Customer acknowledges it is not relying on any representation by the Supplier or its representatives as to the suitability of the Goods, Services or Customer Supplied Parts for the purpose intended by the Customer and that the Customer is responsible for undertaking its own due diligence in respect of the Goods, Services or Customer Supplied Parts and their respective fitness for a particular purpose.
5. To the extent permitted by law, the Customer indemnifies the Supplier against any Loss and Consequential Loss arising out of fitment of the Goods or Customer Supplied Parts which occurs due to the Customer’s failure to undertake proper due diligence with respect to the suitability of the Goods or Customer Supplied Parts for the intended purpose.
6. To the extent permitted by law, for Goods and/or Services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability in relation to the sale of Goods and/or Services to the Customer is limited as follows:
  1. 11.6.1.the Suppliers liability for any Claim is limited at the Supplier’s option to:

1. 1. for Goods replacing the Goods with equivalent goods, repairing the Goods (or payment for the repair of goods) or providing a refund for the Goods;
  2. for the Services providing a remedy to the Customer, which may include, re-supplying the Services or providing a refund for the Services;
  3. 11.6.2.the Supplier is not liable for any Loss to a person or property arising from or caused in any way by the Goods, Services or Customer Supplied Parts; and
  4. 11.6.3.the Supplier will not be liable for any Consequential Loss.
LIMITATION OF LIABILITY BAILMENT
1. The Customer may leave goods/items (including yachts, boats, vehicles, jet skis, bikes, motorbikes and personal items) (Extra Bailed Goods) on or with a good, such as a trailer or other carrying or towing device, (Service Good) provided to the Supplier in connection with the supply of Goods and/or Services by the Supplier. The Goods and/or Services supplied by the Supplier in respect of the Service Good includes the exercise of a lien, or storage in connection with the supply of such Goods and/or Services and the Service Good.
2. The Customer agrees the Extra Bailed Goods may be stored, stationary, moved or in transit, including on public roads and at third party facilities.
3. To the extent permitted by law:
  1. 12.3.1.the Customer leaves the Extra Bailed Goods with the Supplier at the Customer’s own risk and the Supplier, and the Supplier’s Agents, will not be liable for any Loss or Consequential Loss, however caused, to the Customer or the Customer’s goods or property, to any third party or any third party’s goods or property, to the Extra Bailed Goods or any goods or property in connection with the Extra Bailed Goods, or in connection with the Extra Bailed Goods;
  2. 12.3.2.the Supplier is not liable for any Loss or Consequential Loss to the Customer or the Customer’s goods or property, to any third party or any third party’s goods or property, to the Extra Bailed Goods or any goods or property in connection with the Extra Bailed Goods, or in connection with the Extra Bailed Goods arising from any negligence of the Supplier or the Supplier’s Agents, arising without the fault of the Supplier or the Supplier’s Agents or arising due to an act or omission of the Supplier or the Supplier’s Agents.
4. To the extent permitted by law, the Customer indemnifies the Supplier against any Loss and Consequential Loss to the Customer or a third party arising out of the Extra Bailed Goods in the circumstances described in this clause 12.
5. The Customer acknowledges the Supplier does not provide Insurance for the Extra Bailed Goods and the Supplier recommends the Customer insures the Extra Bailed Goods for the circumstances described in this clause 12.
WARRANTY
1. The Customer acknowledges and accepts the terms and conditions of any applicable Warranty.
PERSONAL PROPERTY SECURITIES
1. In this clause:
  1. 14.1.1.terms defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the same meaning when used in this clause;
  2. 14.1.2.the term “Contract” means the contract between the parties for the sale and purchase of the Goods and/or Services which consists of each Order placed by the Customer and these Terms.
2. The Customer acknowledges and agrees that under the PPSA:
  1. 14.2.1.the Contract constitutes a security agreement and each Order is incorporated into the Contract, which includes these Terms;
  2. 14.2.2.as security for payment of the Purchase Price of the Goods, the Customer grants the Supplier a security interest being a purchase money security interest in favour of the Supplier:
  3. in all Goods supplied or to be supplied as specified in an Order or any Order; and
  4. in any present or after acquired property representing the proceeds of sale of the Goods, including where the Customer uses the Goods, or allows the Goods to be used to manufacture or produce another product or in accession to other goods;
  5. 14.2.3.as security for the performance by the Customer of the obligations set out in the Contract the Customer grants the Supplier a security interest:
  6. in all Goods supplied by the Supplier to the Customer from time to time as specified in an Order or any Order; and
  7. in any present or after acquired property representing the proceeds of sale of the Goods,

including where the Customer uses the Goods, or allows the Goods to be used to manufacture or produce another product or in accession to other goods;

1. 1. 14.2.4.the Supplier may register a financing statement on the Personal Property Securities Register, including, a financing statement that describes the Goods as ‘other goods’ (or a description the Supplier otherwise considers appropriate for the Goods), specifies the security interest as a purchase money security interest and specifies that the security interest is taken in all Goods and in any present or after acquired property representing the proceeds of sale of the Goods.
2. The Customer must provide information and do anything the Supplier reasonably requires to register, maintain and enforce the Supplier’s security interest.
3. The Customer indemnifies the Supplier and agrees to reimburse the Supplier on demand for costs incurred in respect of registering, maintaining and enforcing the Supplier’s security interest.
4. The Customer waives the requirement to be provided information under various provisions of the PPSA and agrees that as provided for in:
  1. 14.5.1.PPSA section 157 – the Customer waives its right to receive a verification statement from the Supplier; and
  2. 14.5.2.PPSA section 115 – the Customer waives its right to receive information, or has contracted out of receiving information, under the various provisions set out in clause 14.7 of these Terms.
5. To the extent permitted by PPSA section 275, for the purpose of confidentiality, the Supplier and the Customer agree that the Supplier and the Customer must not disclose the information referred to in section 275(1) unless otherwise agreed in writing between the Supplier and the Customer.
6. To the extent permitted under PPSA section 115, the Supplier and the Customer agree the following PPSA sections are contracted out of, section 95, section 96(b), section 118 (to the extent of providing notice), section 121(4), section 125, section 129(2), section 130 (to the extent that it requires the secured party to give a notice to the grantor), section 132(3)(d), section 132(4), section 135, 142 and 143;
7. The Customer irrevocably grants the Supplier, or an agent of the Supplier or person authorised by the Supplier, the right to enter upon the Customer’s property or premises, without notice or liability, to enforce its rights under the PPSA.
8. The Customer agrees that any rights of the Supplier under the Contract are in addition to the rights of the Supplier under the PPSA.
9. The Customer agrees not to allow a third party to obtain a security interest in the Goods or charge the Goods in anyway while title in the Goods remains with the Supplier without the Suppliers prior written consent.
CANCELLATION
1. The Supplier may in its absolute discretion cancel or postpone appointments in relation to Services (and any Goods in respect of the Services), if it is reasonable for the Supplier to do so or it is in the Supplier’s legitimate business interests to cancel or postpone the appointment (for example, due not non-delivery of a required part, unavailability of a part or labour shortage) and, to the extent permitted by law, the Supplier will not be liable for any Loss or Consequential Loss.
2. Unless expressly agreed to in writing by the Supplier:
  1. 15.2.1.an Order for Goods, including Goods that are Special Buy-In Orders in connection with Services, cannot be cancelled by the Customer; and
  2. 15.2.2.an Order for Services cannot be cancelled by the Customer unless 24 hours’ notice is provided to the Supplier.
3. If the Customer fails to attend any appointment without prior notice, the Customer may, at the discretion of the Supplier, be liable for any reasonable administrative costs incurred by the Supplier and the Supplier will provide to the Customer a compliant Invoice itemising the reasonable administrative costs.
4. If the Customer cancels an Order that is a Special Buy-In Order, then if the Supplier is unable to cancel the order for the Special Buy-In Order with the third party, the Customer will be liable for the Purchase Price for the Special Buy-In Order or if the Supplier cancels the order for the Special Buy-In Order with the third party and suffers Loss in doing so, the Customer will be liable for that Loss.
5. If the Customer cancels an Order that is a Custom Order, then the Customer will be liable to the Supplier for work, labour, and goods and materials used or purchased, in connection with the Custom Order and if the Supplier is unable to cancel an order with the third party that is connected with the Custom Order, the Customer will be liable to the Supplier for any Loss in respect of that order or, if the Supplier cancels the order with the third party that is connected with the Custom Order and suffers Loss in doing so, the Customer will be liable for that Loss.
FORCE MAJEURE
1. With the exception of the payment of the Purchase Price for Services and/or Goods by the Customer in accordance with these Terms, neither party has any liability under these Terms or may be deemed to be in breach of these Terms for any delays or failures in performance of these Terms which result from circumstances beyond the reasonable control of that party (including without limitation as a result of any strike, war, cyber-attack, terrorist attack, trade dispute, fire, flood, tempest, theft, epidemic, pandemic or breakdown in machinery of any kind, disruption to electricity (or any other utility), or breakdown or disruption of any electronic communication support system).
2. The party affected by these circumstances must promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
3. If such circumstances continue for a continuous period of more than 6 months, either party may terminate these Terms by written notice to the other party.
4. If the Supplier is unable to fulfil or complete an Order placed by the Customer within the time frame required by the Customer due to a circumstance in clause 16.1 or 16.2, then the Supplier may cancel the Order without the Customer having a Claim against the Supplier for Loss arising from such a cancellation.
GENERAL
1. Where more than one Customer completes these Terms, each will be liable jointly and severally.
2. These Terms are binding on the Customer, their heirs, assignees, executors, legal representatives, trustees and where applicable, any liquidator, receiver or administrator.
3. Delivery of an executed copy of these Terms by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of these Terms.
4. The Supplier’s rights under these Terms, may only be waived by notice in writing. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
5. The failure by the Supplier to enforce any provision of these Terms will not be treated as a waiver of that provision or affect the Supplier’s right to subsequently enforce that provision.
6. If the Customer is a trustee of a trust:
  1. 17.6.1.the Customer warrants that the Customer as trustee has the power under the trust deed to enter into these Terms and to comply with its obligations under these Terms, including using the trust assets to meet the Customer’s obligations under these Terms;
  2. 17.6.2.the Customer agrees that these Terms bind the Customer in their capacity as trustee and in the Customer’s own capacity; and
  3. 17.6.3.the Customer agrees that the Customer is liable for the failure to meet an obligation under these Terms in its capacity as trustee and in the Customer’s own capacity.
7. The Supplier may assign, license or sub-contract all or any part of its rights and obligations under these Terms, to another person without notice to the Customer. The Customer may not assign or otherwise transfer any or all of its rights and obligations under these Terms without the prior written agreement of the Supplier.
8. The Supplier may vary these Terms at any time by providing notice to the Customer of the variation, and such variation will apply to all Orders made after such notice. However, the Customer acknowledges that the Supplier may use these Terms on its website and that it may provide notice to the Customer of any variation, in which event, the Terms on the Supplier’s website will apply to any future dealings as between the parties, commencing on or after the variation, including future Orders placed by the Customer, and the Customer is deemed to have notice of any such Terms and/or variations.
9. If a provision of these Terms would, but for this clause, be unenforceable, then the provision must be read down to the extent necessary to avoid that result and, if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms.
10. The Customer has no right of set-off in any suit, Claim or proceeding brought by the Supplier against the Customer for default in payment or brought by the Customer against the Supplier. The Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for set-off.
11. These Terms constitute the entire agreement between the Supplier and the Customer with respect to the Goods and/or Services supplied under these Terms. All prior negotiations, proposals and correspondence are superseded by these Terms and these Terms will in all circumstances prevail over the Customer’s Terms. Subject to clause 17.7, no subsequent correspondence or document or discussion will modify or otherwise vary these Terms unless such variation is in writing and signed by the Supplier.
12. These Terms are governed by the laws of New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales.
13. Nothing in these Terms is intended to have the effect of contravening Australian Consumer Law or any other applicable legislation.

Enquire below orCall (02) 4954 6955

Enquire below or
Call (02) 4954 6955