Terms and Conditions
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires:
Agreement means the agreement between the Supplier and the Customer set out in these terms and conditions, the Quotation and any other special terms contained in or attached to the Quotation.
Business Day means a day other than a Saturday, Sunday or State public holiday in Western Australia.
Customer means the person named as the Customer in the Quotation.
Defective means Goods which are:
(a) not in conformity with this Agreement;
(b) not free of defects in design, performance, materials, workmanship or makeup; or
(c) damaged, deficient, faulty or incomplete.
Deposit means the deposit specified in the Quotation.
Goods mean the goods specified in the Quotation.
GST law has the same meaning as GST law in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and GST means the same as in the GST law.
IP Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, know-how and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
party means the Supplier or the Customer and parties means both the Supplier and the Customer.
Price means the total of price of the Goods specified in the Quotation.
Project Site means the Customer’s final location for the Goods specified in the Quotation.
Quotation means the quotation for Goods issued by the Supplier to the Customer to which these terms and conditions are attached containing, amongst other things, a description of the Goods.
Site means the delivery site specified in the Quotation.
Supplier means Eco Structures Australia Pty Ltd (ABN 76 112 623 284) trading as Eco Structures Australia.
Tax Invoice is an invoice which complies with the GST law.
Warranty Period means the period of 12 months from the date of delivery of the Goods to the Site.
1.2 Except where the same have been amended by these terms and conditions, words defined or terms specified in the Quotation have the same meaning when used in these terms and conditions.
1.3 In this Agreement unless the context otherwise requires:
(a) the singular includes the plural and vice versa.
(b) a gender includes all other genders.
(c) words denoting an individual include a firm, body corporate, unincorporated association and any government or governmental, administrative, monetary, fiscal or judicial agency, authority, body, commission, department, tribunal or entity of any kind and vice versa.
(d) references to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them.
(e) headings and italicized, highlighted or bold type do not affect the interpretation of this Agreement.
(f) references to a clause, paragraph, annexure, attachment or schedule is a reference to the same in this Agreement.
(g) a reference to a party in this Agreement includes a party’s personal representatives, successors in title and permitted assigns.
(h) a promise, agreement, representation or warranty by or in favour of (as the case may be) more than one person is for the benefit of or binds them (as the case may be) jointly and severally.
(i) a reference to a document includes that document as amended or replaced.
(j) a reference to a whole thing includes a reference to part of that thing.
(k) a party to this Agreement that is a trustee of a trust is bound in the party’s own personal capacity and as trustee of the trust.
(l) a provision of this Agreement may not be construed adversely to a party solely because that party, or its representative, was responsible for the preparation of this Agreement or the preparation of that provision.
(m) other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning.
(n) “include”, “including”, “for example”, “such as” and other similar words or expressions in this Agreement do not limit what else is included and are to be construed as if they are followed by the words “without limitation”.
(o) a reference to time is a reference to Western Standard time.
(p) if a period of time is specified and dates from a day or the day of an act or event, it is to be calculated exclusive of that day.
(q) if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00pm on that day, it is taken to be done on the next day.
(r) if anything under this Agreement must be done on a specified day that is not a Business Day then that thing must be done on the next Business Day.
(s) a reference to a currency is the currency stated in the Quotation
2.1 The Supplier will supply the Goods to the Customer in accordance with this Agreement.
2.2 This Agreement will be made by the Customer signing the Quotation and returning it to the Supplier together with payment of the Deposit within 30 days of the quote date.
2.3 In case of any conflict or ambiguity between the Quotation, any special terms contained in or attached to the Quotation and these terms and conditions, the Quotation and any special terms contained in or attached to it shall have precedence over these terms and conditions.
2.4 By signing the Quotation and returning it to the Supplier, the Customer agrees:
(a) to be bound by the terms in this Agreement; and
(b) that the terms and conditions in any of the Customer’s documents, in respect of the supply of the Goods, are expressly excluded from this Agreement and of no legal force and effect.
3.1 The Supplier will promptly inform the Customer of any anticipated delay in the manufacture and/or delivery of the Goods, the extent of the delay and its cause, and take all reasonable steps to mitigate any such delay, but will not have any liability to the Customer for any such delay.
3.2 The Supplier will obtain all necessary approvals, permits, licences, certificates and declarations required by law to export and ship the Goods from their place of manufacture to the Site.
3.3 The Customer is responsible for unloading the Goods at the Site, import clearance and any applicable local taxes and import duties.
3.4 The Customer will arrange for its nominated transport Supplier to collect the Goods at the Site and deliver them to the Project Site and shall pay all costs of same including freight and insurance.
3.5 The Customer must pay for any storage costs the Supplier incurs due to a delay in transportation caused by the Customer.
3.6 The Goods must match the description, nature and quality in the Quotation.
3.7 The Goods will comply with all applicable legislation, regulation and relevant standards in the Supplier’s place of incorporation.
3.8 The Goods will be new (unless otherwise specified in the Quotation).
3.9 The Goods will be delivered to the Site in flat packs or component form, provided that the Customer will be solely responsible for erection and installation of the Goods at the Project Site and all costs in relation to same.
3.10 Subject to the warranties in clause 6, the Customer will be taken to have accepted that the Goods match the description, nature, quantity and quality in the Quotation unless the Customer notifies the Supplier in writing within 30 days of delivery of the Goods to the Site that the Goods do not match the description, nature, quantity or quality in the Quotation. Following such notification, the Supplier will investigate the claim and, if the Supplier acting reasonably accepts the claim, the Supplier will as soon as reasonably practicable thereafter supply additional or replacement Goods at its cost as required to satisfy the claim.
4.1 In consideration of the Supplier supplying the Goods to the Customer in accordance with this Agreement, the Customer must pay the Price to the Supplier.
4.2 The Supplier will submit Tax Invoices for the Goods to the Customer each time a payment is required to be made by the Customer as stated in the payment terms in the Quotation. With each Tax Invoice the Supplier will provide the Quotation number, a description of the Goods, the appropriate payment amount and the amount of any applicable GST.
4.3 The Customer must pay to the Supplier by credit card or electronic funds transfer to the bank account nominated by the Supplier:
(a) the Price within the time specified in the Supplier’s Tax Invoice;
(b) any other moneys payable to the Supplier under this Agreement within the time specified in the Supplier’s Tax Invoice; and
(c) if no time for payment is specified in the Supplier’s Tax Invoices within 7 days of the Customer receiving the Supplier’s Tax Invoice.
4.4 Where the Customer disputes the Tax Invoice or part thereof, the Customer must pay the undisputed part of the Tax Invoice and if the resolution of the dispute determines that the Customer is to pay an amount to the Supplier, the Customer must pay that amount forthwith upon resolution of the dispute. Each party must negotiate with the other expeditiously and in good faith to resolve any such dispute as soon as practicable.
4.5 Unless otherwise stated, all amounts payable under this Agreement are exclusive of GST. A recipient of a taxable supply made under this Agreement must pay to the supplier an amount equivalent to any GST paid or payable by the supplier in respect of the taxable supply subject to the supplier issuing a valid Tax Invoice in accordance with the GST law to the recipient. The GST amount must be paid at the same time as the other consideration for the supply is to be paid or provided.
4.6 If the Customer does not pay any moneys payable to the Supplier under this Agreement on time, the Customer must pay interest to the Supplier upon demand on the outstanding amount calculated daily at the rate of 2.0% per month from the date the payment was due until the date the payment is made.
5.1 Risk in the Goods passes to the Customer when the Goods are delivered to the Site.
5.2 Property and title in the Goods only pass to the Customer upon full payment of the Price.
6.1 The Supplier warrants:
(a) it is the legal and beneficial owner of the Goods;
(b) it has good right and title to sell the Goods to the Customer;
(c) title in the Goods will pass to the Customer free of any mortgage, charge, lien, security interest or other encumbrance;
(d) the Goods do not infringe the IP Rights of any third party;
(e) the major components of the Goods on the terms of the warranties specified in attachment 1; and
(f) the Goods will not be Defective during the Warranty Period.
6.2 If, during the Warranty Period, any of the Goods are found to be Defective, the Supplier will at its cost and option either:
(a) repair or replace the Defective Goods; or
(b) reimburse the Customer for the cost of repairing or replacing the Defective Goods.
6.3 The Supplier is not liable to the Customer for any Defective Goods to the extent that the defect is caused or contributed to by:
(a) the negligence of the Customer or any one acting on the Customer’s behalf or with the Customer’s consent express or implied;
(b) failure to install or erect the Goods in accordance with the Supplier’s instructions or guidelines;
(c) the misuse or neglect of the Goods or failure to maintain the Goods as instructed by the Supplier;
(d) repairs to the Goods by anyone without the Supplier’s prior written approval; or
(e) any act, omission or thing that is beyond the Supplier’s control.
6.4 The Customer acknowledges and agrees that:
(a) except as expressly stated in this Agreement, it has entered into this Agreement without reliance on any representation, warranty or guarantee by the Supplier;
(b) except as expressly stated in this Agreement, all express and implied warranties, guarantees and conditions under statute or general law are, to the maximum extent permitted by law, expressly excluded;
(c) the Supplier will not be liable to the Customer in any circumstances for any indirect, economic, special or consequential loss or damage, including loss of revenue or loss of profit;
(d) the Supplier makes no representation or warranty and gives no guarantee that the Goods comply with any applicable law, regulations, rules, codes (including building code) or other requirements of any government or any government, municipal or statutory agency, authority, body or department with jurisdiction over the Project Site; and
(e) it is responsible for ensuring that the Goods comply with any applicable law, regulations, rules, codes (including building code) or other requirements of any government or any government, municipal or statutory agency, authority, body or department with jurisdiction over the Project Site.
7.1 The Customer acknowledges and agrees that:
(a) the Supplier is the owner of the IP Rights in and to the Goods, and the know-how, documentation and information in relation to the Goods supplied to the Customer.
(b) this Agreement does not affect the Supplier’s ownership of the IP Rights in and to the Goods, and know-how, documentation and information in relation to the Goods, supplied to the Customer, which are and will remain the property of the Supplier
7.2 The Customer shall not, without the prior written consent of the Supplier, copy, reproduce, modify, alter, adapt, disassemble, reverse engineer, decompile or amend the Goods in any way.
7.3 The Customer must not assert or allege any claim or demand or institute any action or proceedings challenging the Supplier’s IP Rights in and to the Goods or any documentation and information in relation to the Goods supplied to the Customer, or assist any other party to do so.
7.4 Except for information that is lawfully in the public domain or for the sole purpose of erecting or installing the Goods at the Customer’s final location for the Goods, the Customer shall keep:
(a) all information in relation to the IP Rights in and to the Goods; and
(b) the Supplier’s know-how, documentation, processes and other information in relation to the Goods and their construction and erection,
strictly confidential and must not use or disclose any such information without obtaining the Supplier’s prior written consent.
8.1 No party shall during the term of this Agreement and for a period of 5 years after termination or the completion of the performance of this Agreement (except in the bona fide exercise of its rights or performance of its obligations under this Agreement) disclose to any person any information of a confidential nature of or relating to the other party or the Goods which it acquired as a result of this Agreement or the negotiations preceding this Agreement.
8.2 Nothing in this Agreement prohibits disclosure of information which.
(a) is in the public domain;
(b) is to a party’s officers, employees, agents, consultants or contractors who have a bona fide need to know the information and agree to keep it confidential;
(c) is lawfully received from a third party;
(d) is required to be disclosed by law or court order; or
(e) the other party has given its prior written consent to the disclosure.
8.3 The obligations in this clause survive the termination of this Agreement.
9.1 A party is in default of this Agreement if the party:
(a) breaches this Agreement and does not remedy the breach within 10 Business Days of receipt of written notice from the party not in breach requiring the breach to be remedied;
(b) being a body corporate:
(1) has a liquidator or provisional liquidator appointed;
(2) becomes under judicial management or an insolvent under administration;
(3) has a receiver or receiver and manager appointed to it or any of its property; or
(4) is unable to pay its debts as and when they fall due and payable due;
(5) enters into any compromise, arrangement or assignment, whether formal or informal, with any of its members or creditors.
(c) being a natural person:
(1) dies;
(2) is unable to pay his or her debts as and when they fall due and payable;
(3) has a trustee in bankruptcy appointed; or
(4) ceases to be of full legal capacity or otherwise becomes incapable of managing his or her own affairs for any reason;
(d) enters into any compromise, arrangement or assignment, whether formal or informal, with any of its creditors or any analogous event occurs; or
(e) has a judgment or order, or any encumbrance, enforced or become enforceable against it and is not paid or satisfied within 30 days.
9.2 Where a party is in default of this Agreement (Defaulting Party) then, without limiting any other of the legal rights or remedies of the party not in default (Non Defaulting Party), the Non Defaulting Party may:
(a) affirm the Agreement and sue the Defaulting Party for damages for default;
(b) affirm the Agreement and sue the Defaulting Party for specific performance of the Agreement, or damages for default in addition to or instead of specific performance;
(c) terminate the Agreement by notice to the Defaulting Party and, if the Defaulting Party is the Customer, retain or retake repossession of the Goods; or
(d) where the Defaulting Party repudiates this Agreement, terminate this Agreement by written notice to the Defaulting Party and, if the Defaulting Party is the Customer, retain or retake possession of the Goods.
If the Supplier terminates the Agreement under clause 9.2(c) or (d), the Supplier may sue the Customer for damages for default and/or re-sell the Goods in such manner and on such terms and conditions as the Supplier reasonably determines.
9.3 Termination of this Agreement for any reason does not affect the rights of a party that arise before the termination, or as a consequence of the event or occurrence giving rise to the termination, or as a consequence of the breach of any obligation under this Agreement which continues to take effect after termination.
10.1 Any notice or other communication in connection with this Agreement:
(a) must be in writing and signed by the party giving it or its solicitor or agent, but an email does not have to be signed;
(b) must be given or served in any of the following ways, namely:
(1) in a manner authorised by law or by personal delivery;
(2) sent by prepaid post to the address of the addressee specified in the Quotation; or
(3) sent by email to the email address of the addressee specified in the Quotation,
or if the addressee notifies another address or email address in accordance with this clause then to that address or email address.
(c) takes effect from the time it is received and, unless a later time is specified, is taken to be received:
(1) if served or given by personal delivery, at the time it is delivered;
(2) if left at the address of the addressee, at the time it is left;
(3) if sent by prepaid ordinary post to the address of the addressee, at the expiration of 3 Business Days after posting (and 10 Business Days after posting if to another country); or
(4) if sent by email to the email address of the addressee specified above, 2 hours after the email is sent (unless the sender receives an automated message that the email has not been delivered),
provided that if notices are received after 5.00 pm in the place of receipt or on a non-Business Day, they are taken to be received at 9.00 am on the next Business Day.
If a party’s performance of this Agreement, or of any obligation hereunder is prevented, restricted or interfered with by reason of fire, storm, flood, earthquake, explosion, breakdown, strike, labour dispute, accident, lack of transportation, epidemic, lack of raw materials, power or supplies, war, revolution, civil commotion, acts of God, blockade or embargo or any law, order, proclamation, decree or requirement of any government or any government, municipal or statutory agency, authority, body or department, or any other act whatsoever beyond the reasonable control of a party, then:
(a) the party so affected, upon giving prompt notice to the other party, shall be excused from such performance (other than an obligation to pay any money) to the extent of such prevention, restriction or interference; and
(b) the other party shall likewise be excused from performance of its obligations to the extent such obligations relate to the performance so prevented, restricted or interfered with,
provided that the party so affected must use its best efforts to avoid and remove such causes of non-performance. Both parties will resume performance of their respective obligations as soon as is practicably possible when such cases are removed.
12.1 Each party shall sign, execute and do all agreements, acts, documents and things as the other party may reasonably require to carry out and give effect to the terms and intentions of this Agreement.
12.2 The parties agree that this Agreement contains the entire agreement between them as to its subject matter and supersedes all prior agreements understandings and negotiations as to such subject matter.
12.3 If any provision of this Agreement becomes invalid, the provision is enforceable to the extent that it is not invalid, whether it is in severable terms or not, provided that this clause does not apply where enforcement of a provision of this Agreement in accordance with this clause would materially affect the nature or effect of the parties’ obligations under this Agreement.
12.4 No party may rely on the words or conduct (including a failure or delay in the exercise of a right, power or remedy arising under or in connection with this Agreement) of the other party as a waiver of any right, power or remedy under or in connection with this Agreement unless the waiver is in writing and signed by the party granting the waiver, and any single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
12.5 A variation of this Agreement must be in writing and signed by the parties.
12.6 Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.
12.7 The special conditions (if any) contained in the Quotation or attached to this Agreement shall apply to this Agreement and in the event that any inconsistency arises between such special conditions and any other provisions of this Agreement such special conditions shall prevail.
12.8 The parties agree that:
(a) this Quotation may be executed electronically through an electronic signature platform such as DocuSign or a similar platform;
(b) subject to clause 10 (notices), any notice or other communication in connection with this Agreement may be given by email or other forms of electronic communication; and
(c) a transaction in connection with this Agreement may take place wholly or partly by means of one or more electronic communications.
12.9 This Agreement shall be governed by the law of Western Australia and the parties hereto agree to submit to the jurisdiction of the courts of Western Australia in all matters arising out of this Agreement and any court hearing appeals from those courts. Each party unconditionally submits to the jurisdiction of the courts mentioned above and waives any right it has to object to an action being brought in any of those courts.
