1 Definitions
In these General Terms:
“General Terms” means these General Terms.
“Goods & Services” means all goods, services, equipment, materials, articles or any other property or parts provided or to be provided to the Recipient by the Supplier and includes, without limitation, all services including design, manufacture, inspection, testing, expediting, quality assurance and control, painting, packing and delivery as specified or required in any dealing between the Supplier and Recipient.
“Materials” means all and any property of any nature (whether tangible or intangible and including intellectual property) that has or may be supplied by the Supplier to the Recipient under any dealing between them.
“Price” means the price for the Goods & Services determined in accordance with clause 3 herein.
“Recipient” means the person, company or organization to whom Supplier is making the relevant supply.
“Supplier” means Redx Technology Australia (Redx) Pty Ltd ACN 614 340 546.
“Work” means the manufacture or modification and delivery of the Goods & Services.
No Waiver Failure by the Supplier to enforce, or any delay in enforcing, any provision of these terms or to exercise any right under this Agreement on any occasion shall not be construed as a waiver of such right for any other occasion or purpose and the same will continue in force
2 Whole Agreement
These terms and any attached Purchase Order or quotation shall contain the entire agreement between the Supplier and Recipient in relation to the supply of Goods & Services and Materials by the Supplier to the Recipient and, to the extent permitted by law, no other promise, warranty, representation, variation or statement shall be binding on either of them unless in writing signed by both parties.
3 Severability
If any provision of these terms or the agreement between the parties is held to be void or otherwise enforceable by a court then all other terms shall, to the extent they can, remain enforceable as between the parties.
4 Price and payment
The Supplier need not commence the supply of the Goods & Services until a quotation has been accepted by the Recipient and any deposit required by the Supplier has been paid.
| 4.1 |
The Recipient shall pay the price for the Goods & Services as stated in any quotation given by the Supplier to the Recipient (subject to this clause) or in the absence of a fixed quotation, the price will be determined by applying the Supplier’s standard rates and prices as notified to the Recipient from time to time. |
| 4.2 |
The Supplier need not commence the supply of the Goods & Services until a quotation has been accepted by the Recipient and any deposit required by the Supplier has been paid. |
| 4.3 |
Variations will be charged for on the basis or as near to the basis of the Supplier’s quotation as is practicable, or otherwise based on the Supplier’s standard rates and charges, and will be detailed in writing, and shown
as variations on the Supplier’s invoice. The Recipient shall be required to respond in writing to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to cease:
| (a) |
the Work; and |
| (b) |
supply of further Materials |
until such time as the Recipient has responded in writing to the proposed variation. |
| 4.4 |
At the Supplier’s sole discretion, a deposit may be required and paid prior to commencement of the Goods & Services by the Supplier, unless the Supplier agrees otherwise. |
| 4.5 |
In the event the Recipient terminates this Agreement after the deposit has been paid, then the deposit shall be returned to the Recipient less:
| (a) |
any and all materials purchased by the Supplier for the Work agreed to by the Recipient; and |
| (b) |
any and all administrative and other costs incurred by the Supplier as a result of the termination of this Agreement by the Recipient. |
|
| 4.6 |
The Supplier may invoice the Recipient for progress payments for the Goods & Services at its discretion issue invoices but, in any case, at least monthly. |
| 4.7 |
All invoices will be due for payment within 7 days of issue of the invoice to the Recipient. |
| 4.8 |
The Recipient shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Recipient by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute. |
| 4.9 |
4.9 The Recipient must pay the GST, as shown in any invoice issued by the Supplier without deduction or set off of any other amounts, at the same time and on the same basis as the Recipient pays the Price. In addition, the Recipient must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. |
| 4.10 |
The Supplier will supply invoices to the email address nominated by the Recipient free of charge. In the event that the Recipient requires a paper copy of the invoice to be posted, a service fee of $10.00 may be added to the total invoiced amount, payable by the Recipient. |
5 Provision of the Goods & Services
| 5.1 |
Subject to clause 4.2 the Supplier’s shall ensure that the Goods are supplied and the Services start as soon as is reasonably possible after any deposit required by the Supplier is paid by the Recipient. |
| 5.2 |
The supply of the Goods & Services will be postponed and/or the completion date extended by whatever time is reasonable in the event that the Supplier claims an extension of time (by giving the Recipient written notice) where completion is delayed by an event beyond the Supplier’s control, including but not limited to any failure by the Recipient to:
| (a) |
make a selection necessary for the conduct of the Work or supply of the Goods within a reasonable period of time after being requested to do so by the Supplier; or |
| (b) |
have the site ready for the Work; or |
| (c) |
notify the Supplier that the site is ready. |
|
| 5.3 |
The Supplier may deliver the Goods & Services by separate instalments as stipulated in the quotation or otherwise agreed between the parties. Each separate instalment may be invoiced and paid in accordance with the provisions in these terms and conditions. |
| 5.4 |
Any time specified by the Supplier for delivery of the Goods & Services is an estimate only and the Supplier to the extent permitted by law will not be liable for any loss or damage incurred by the Recipient as a result of delivery being late if such delay is not due to the conduct of the Supplier. |
| 5.5 |
Both parties agree that they shall make every endeavor to enable the Goods & Services to be supplied at the time and place agreed by them. |
| 5.6 |
If Supplier is unable to supply the Goods & Services as agreed due to the conduct of the Recipient, then the Supplier shall be entitled to charge a reasonable fee for re-supplying the Goods & Services at a later time and date, and/or for storage of any materials or machinery required for the supply of the Goods & Services. |
| 5.7 |
The Recipient must ensure that they, or their representative remain on the site during the supply and carrying out of the Goods & Services by the Supplier. |
6 Risk
| 6.1 |
Upon completion of the Work, to the extent permitted by law, all risk for the Works and Materials shall immediately pass to the Recipient. |
| 6.2 |
The Recipient shall ensure that the Supplier has safe, clear and free access to any nominated site at all times to enable them to supply the Goods & Services without being impeded. |
| 6.3 |
The Supplier shall not be liable for any loss or damage to the Materials or the site (including, without limitation, damage to pathways, driveways and concreted, paved or grassed areas) unless such loss or damage results from the negligence of the Supplier. |
7 Defects and Warranties
| 7.1 |
The Recipient must inspect all Materials on delivery (or the Works on completion) and must within thirty (30) days of delivery notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. |
| 7.2 |
The Recipient must notify any other alleged defect in the Materials or the Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Recipient must allow the Supplier to inspect the Materials or to review the Works provided in order to determine what:
| (a) |
defects or damage are present in the Materials or in the Works; and |
| (b) |
further works or replacement of materials is required to remedy such defects or damage; or |
| (c) |
what payment or compensation is due to the Recipient as a result of such defect or damage. |
|
| 7.3 |
Failure to provide notice under Clauses 6.1 and 6.2 above shall not prevent a consumer Recipient from exercising any of their rights under the Australian Consumer Law. |
| 7.4 |
7.4 The Supplier acknowledges that nothing in these terms purports to modify or exclude the consumer guarantees in the Australian Consumer Law under which if the Goods are not of acceptable quality or the Services are not supplied with due care and skill:
| (a) |
the Recipient may be entitled to a replacement or refund for a major failure and or compensation for any reasonable foreseeable loss or damage; or |
| (b) |
if the defect in the Goods or Services is not a major failure, the Recipient may be entitled to have the Goods repaired or the Works created by the Services rectified. |
|
| 7.5 |
The Supplier warrants that the Goods supplied are of acceptable quality and makes no other promise, warranty or statement as to the quality of the Goods supplied. The Supplier warrants that the Services will be supplied and the Works performed with due care and skill and makes no other promise, warranty or statement in relation to those Services and Works. |
| 7.6 |
If the Recipient is not a consumer or the Goods & Services have not been acquired for personal, domestic or household use, then:
| (a) |
the liability of the Supplier for any loss or damage caused by the Goods or by the Works resulting from the services shall be limited to:
| (i) |
the Recipient may be entitled to a replacement or refund for a major failure and or compensation for any reasonable foreseeable loss or damage; or |
| (ii) |
if the defect in the Goods or Services is not a major failure, the Recipient may be entitled to have the Goods repaired or the Works created by the Services rectified. |
|
| (b) |
the liability of the Supplier for any loss or damage caused by the Goods or by the Works resulting from the services shall be limited to:
| (i) |
indirect or consequential loss or damage; or |
| (ii) |
loss of profits or interruption of business. |
|
|
| 7.7 |
If the Supplier is required to replace any Materials under this clause or an applicable law, but is unable to do so, the Supplier may refund any money the Recipient has paid for the Materials, and in so doing will be fully and finally discharged from all claims and liabilities arising in connection with the matter. |
| 7.8 |
If the Supplier is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or any applicable law, but is unable to do so, then the Supplier may refund any money the Recipient has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Recipient which were not defective or non-compliant.</p |
| 7.9 |
The Supplier shall not be liable for any defect, loss, liability or damage which may be caused or partly caused by or arise as a result of:
| (a) |
The Recipient failing to adhere strictly to clause 6.1 herein; |
| (b) |
the Recipient failing to properly maintain or properly store any Materials; |
| (c) |
the Recipient using the Materials for any purpose other than that for which they were designed; |
| (d) |
the Recipient continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user; |
| (e) |
interference with the Works by the Recipient or any third party without the Supplier’s prior approval; |
| (f) |
the Recipient failing to follow any instructions or guidelines provided by the Supplier; |
| (g) |
fair wear and tear, any accident, or act of God or force majeure. |
|
| 7.10 |
If the Recipient is not a consumer or the goods are not purchased for personal, domestic or household use, then in the case of second hand or used Materials, the Recipient acknowledges that the Supplier has made no warranty as to the quality or fitness for any purpose of the Materials. |
| 7.11 |
The Recipient acknowledges and agrees that the Supplier has agreed to provide the Recipient with the second hand or used Materials and calculated the Price of the second hand Materials in reliance of this clause 6.8. |
8 Default
| 8.1 |
The Recipient must pay to and indemnify the Supplier against all expenses, losses, liabilities and damages (including all reasonable legal costs on a solicitor and client basis) paid or incurred by the Supplier arising from, resulting from, or incidental to any breach of these terms by Recipient. |
| 8.2 |
Where monies are not paid by the due dates provided for in this Agreement , interest will be charged commencing from the date that the monies fell due, and said interest will accrue at the rate of 15% per annum, compounding monthly, on all such outstanding monies until those monies have been paid in full. |
9 Suspension/Termination
| 9.1 |
Without prejudice to any other remedies the Supplier may have, if at any time the Recipient is in breach of any obligation (including those relating to payment) under these terms, the Supplier may suspend or terminate the supply of Works to the Recipient. |
| 9.2 |
To the extent permitted by law, the Supplier will not be liable to the Recipient for any loss or damage the Recipient suffers because the Supplier has exercised its rights under this clause. |
| 9.3 |
If the Recipient is in breach of these terms and upon providing seven (7) days notice in writing to the Recipient, the Supplier may cancel any agreement to which these terms apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Recipient. |
| 9.4 |
On giving notice under Clause 8.3 above, the Supplier shall repay to the Recipient any sums paid in respect of the Price, less any amounts owing by the Recipient to the Supplier for Works already performed. |
| 9.5 |
To the extent permitted by law, the Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation. |
| 9.6 |
In the event that the Recipient cancels the delivery of Works, the Recipient shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits). |
10 Applicable law
Unless otherwise specified, these terms are governed by and must be construed in accordance with the laws of the state of Queensland and the parties submit any dispute arising out of these terms or otherwise out of the supply of the Goods & Services to the courts and tribunals of that State.
