In these Terms and Conditions, these words have the following meaning:
Agreement means these Terms and Conditions and the Order Form.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Business Day means any day except a Saturday, Sunday or public holiday in Victoria.
Company means Artelia Pty Ltd ACN 615 833 255.
Consequential Loss means:
(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(b) any loss beyond the normal measure of damages.
Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
Customer means the entity or person named in the Order Form who made an Order or otherwise requested that Goods be supplied to it by the Company.
Deposit means the amount specified in the Order Form.
Express Warranty means any express warranty set out in the Order Form.
Goods means the goods to be supplied by the Company to the Customer under an Agreement.
GST has the meaning given to it under the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended, varied or replaced from time to time.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Order means any order or other request by or from the Consumer to the Company for it to supply to the Consumer any Goods, whether written, verbal or implied in the circumstances and includes any website operated by the Company to sell Goods.
Order Form means any Order made by the Company and the Customer.
PDH Goods means goods which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Purchase Price means the amount specified in the Order Form.
Specifications means any physical, qualitative, technical or descriptive specifications of the Goods as set out in the Order Form.
2 Payment of the Purchase Price
The Purchase Price is the consideration for the Goods and must be paid by the Purchaser as follows:
(a) the Deposit on the date set out in the Order Form; and
(b) the balance of the Purchase Price upon the Company notifying the Customer that the Goods have been manufactured to the Specifications.
3.1 The Customer acknowledges and agrees that the Deposit is genuine pre-estimate of the costs incurred by the Company of designing, sampling, testing and manufacturing the goods in accordance with the Order.
3.2 The Customer is not entitled to a refund of the Deposit unless this Agreement is terminated in accordance with clause 11.2.
4 Delivery of Goods
4.1 The Company will deliver the Goods to the Customer in the manner:
(a) determined by the Company; or
(b) as otherwise agreed between the Company and the Customer (including collection by the Customer).
4.2 The Company will endeavour, but is not obliged, to deliver Goods between the hours of 8.00am and 5.00pm Monday to Friday (excluding public holidays in Victoria) at the place of delivery.
4.3 The Customer must, upon taking possession of the Goods, inspect the Goods and immediately notify the Company in writing if the Goods are not fit for any purpose for which the Customer intends to use the Goods, have any defect or otherwise do not meet any Specifications.
4.4 The Company will use its reasonable endeavours to deliver the Goods on any date specified or estimated by the Company however such dates are estimates only and the Company will not be liable for late or part delivery of the Goods and later delivery of Goods does not entitle the Customer to cancel any order for the Goods
5 Title and risk of Goods
5.1 Title to, and property in, any Goods will remain with the Company and will only pass to the Customer once the Purchase Price is paid in full.
5.2 Risk in the Goods passes to the Customer upon the Goods leaving the Company’s premises (or that of the Company’s supplier) for delivery to the Customer from such premises and:
(a) the Customer is responsible for arranging, and taking out in its own name and its own cost, any insurance in respect of the Goods from the time risk passes to the Customer; and
(b) the Customer indemnifies the Company against any Loss or damage to the Goods, however caused, occurring after risk passes to the Customer.
6.1 The Company acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the Goods and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of any such rights.
6.2 If the Customer is a Consumer and any goods supplied by the Company to the Customer are non PDH Goods, the Company’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods is limited (at the Company’s discretion) to:
(a) the replacement of the Goods or the supply of equivalent goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the Goods repaired.
6.3 If the Customer makes a claim against the Company which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, the Company expressly excludes all liability in respect of the goods supplied by the Company to the Customer.
6.4 In relation to the supply of Goods which are non PDH Goods, the Company’s liability to the Customer is limited to an amount equal to the lower of:
(a) the cost of replacing the Goods;
(b) the cost of obtaining equivalent Goods; or
(c) the cost of having the Goods repaired.
7 Express Warranty
The Company acknowledges and agrees:
(a) that the Goods are covered by the Express Warranty; and
(b) the Express Warranty is separate from any rights and remedies available to the Customer under the Australian Consumer Law.
8 Intellectual Property
Unless expressly stated by an Agreement, the parties acknowledge and agree that as between the Company and the Customer all intellectual property rights in the Goods (including in designing or manufacturing the Goods) vests in and is owned by the Company.
9.1 The Specifications are approximate only and the Company makes no representation or warranty as to the completeness or accuracy of the Specifications.
9.2 Where any instructions, materials or information in whatever form are required to be provided by the Customer to the Company before the Company can proceed with or complete the provision of the Goods such instructions, materials or information must be supplied by the Customer to the Company within a reasonable time (as determined by the Company) so as to enable the Company to deliver the Goods within any agreed time frame.
9.3 If the Customer approves any sample or prototype of a Good produced by the Company or any tests conducted by the Company on any Goods, the Customer shall be deemed to have accepted the physical, qualitative, technical or descriptive specifications, dimensions, weights or other particulars of the Goods as produced or tested by the Company.
9.4 The Company may make changes to the specifications, dimensions, weights or other particulars of the Goods as may be required from time to time by law or any safety or manufacturing requirements.
Unless otherwise expressly stated in writing in an Agreement, all amounts payable by the Customer in connection with an Agreement do not include an amount for GST. If GST is payable on any supply made by the Company under this Agreement, the Customer must pay to the Company, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply.
11.1 Without limiting the Company’s other rights under this Agreement, the Company may terminate this Agreement with immediate effect by written notice to the Customer if:
(a) the Customer fails to make any payment under the Agreement to the Company within seven days of the due date for that payment;
(b) the Customer has breached any term of this Agreement and, if the breach is capable of remedy, has not remedied the breach within 14 days or receiving notice requiring the breach to be remedied.
11.2 The Customer may terminate this Agreement with immediate effect by written notice to the Company if the Company has breached any fundamental term of this Agreement and, if the breach is capable of remedy, has not remedied the breach within 14 days or receiving notice requiring the breach to be remedied.
11.3 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
12.1 In this Agreement a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time.
12.2 Either party may at any time, to the extent permitted by law, assign, subcontract or deal with any of its rights or obligations under this Agreement subject to the written agreement of the other party acting reasonably.
12.3 A failure to exercise or delay in exercising any right under this Agreement does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under this Agreement must be in writing and is only effective to the extent set out in that written waiver.
12.4 If any provision of this Agreement is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from this Agreement without affecting the validity or enforceability of the remaining provisions.
12.5 This Agreement constitutes the entire agreement between the Customer and the Company in respect of the supply of the relevant Goods or Services the subject of the relevant Agreement and supersede all previous communications, representations, understandings or agreements.
12.6 This Agreement governed by the laws in force in Victoria, and the Customer and the Company submit to the non-exclusive jurisdiction of the courts of Victoria.