Terms & Conditions
CONDITIONS OF TRADE
1.0 DEFINITIONS AND GENERAL
1.1 Company means Jetwave Group Pty Ltd (ABN 20 056 759 892).
Conditions means these Conditions of Trade.
Customer means the applicant referred to in the credit application and includes the customer’s associates.
Goods mean all goods delivered by the Company to the Customer, and includes all machines and equipment.
Services means all services provided by the Company to the Customer, including all services to the machines and equipment.
1.2 These Conditions:
1.2.1 apply to the sale and supply of all the goods or services by the Company to the Customer to the exclusion of all other terms and conditions whatsoever, whether contained or implied in or from any order from the Customer or from any conduct of, or representations made, by the Customer or the Company;
1.2.2 will be deemed incorporated in any order placed by the Customer;
1.2.3 will prevail over all other conditions of the Customer’s order to the extent of any inconsistency (except where waived by the Company in writing);
1.2.4 will not be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Australian Consumer Law and the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
2.0 QUOTATIONS, SPECIFICATIONS AND PRICE
2.1 Except where the quotation is expressly designated otherwise, written quotations are valid for thirty (30) days from the date of the quotation and are subject to re-quotation thereafter.
2.2 Unless otherwise agreed in writing, all prices quoted are exclusive of GST and ex-works.
2.3 All goods offered by the Company are offered subject to stock availability at the time the Customer accepts the quotation.
2.4 In the event that the Customer accepts a quotation, such acceptance shall be deemed to form a contract between the Customer and the Company which incorporates these Conditions.
2.5 If the Customer seeks any variation to quoted goods or services or seeks to cancel the goods or services after the Company has accepted the Customer’s order then:
2.5.1 The Company is free to either accept the variation without altering the quotation price or not. If the Company does not agree to the variation, then the Company is free to terminate the contract without any liability on the part of the Company.
2.5.2 Alternatively, the Company may accept the variation sought by the Customer subject to an amendment to the price and charges in the quotation, at the Company’s absolute discretion, to be agreed with the Customer prior to the Company delivering the goods or completing the service. If no agreement is reached, then the contract shall be deemed terminated without any liability on the part of the Company.
2.6 If the variation or cancellation in Clause 2.5 is sought at any time after the Company has incurred labour costs, ordered or purchased materials or commenced any work in respect of the order, then the Customer shall be liable for all costs incurred by the Company notwithstanding any termination of the contract by the Company pursuant to Clause 2.5.1. The costs incurred shall be payable upon the Company providing a written demand to the Customer.
3.0 TERMS OF PAYMENT
3.1 At the election of the Company and as notified to the Customer in writing, payment may be made by the Customer as follows:
3.1.1 By payment in full upon the Customer submitting an order to the Company or accepting a quotation provided by the Company; OR
3.1.2 By payment of a deposit nominated by the Company upon the. Customer submitting an order to the Company or accepting a quotation provided by the Company with the balance to be paid by the Customer before dispatch of goods; OR
3.1.3 By payment of a deposit nominated by the Company upon the Customer submitting an order to the Company or accepting a quotation provided by the Company with the balance to be paid by the Customer on delivery of the goods; OR
3.1.4 By payment in full within the agreed terms of the Account Customer receiving a tax invoice from the Company.
3.2 All payments are to be paid as clear funds.
3.3 The Company shall provide the Customer with a Tax Invoice prior to receiving payment.
3.4 All payments must be made by via cash, bank cheque, credit card (surcharge may apply) or EFT direct deposit to the bank account for the Company.
3.5 All taxes, customs, duties, stamp duties and duties of excise of any nature whatsoever now levied by any governmental authority whether federal, state or local either directly or indirectly upon the goods or upon freight charges (if any) shall be paid by the Customer. The Company reserves the right to add to the price of the goods any increase of the items set out in clause 3.5 levied during the currency of the contract and before delivery of the goods.
3.6 In the event that this contract comes to an end as a result of the Customer’s breach of these Conditions or the Customer’s cancellation of an order for the goods without the Company’s consent, the parties agree that any deposit paid shall be forfeited to the Company and the Customer shall further be liable to the Company for a cancellation fee equal to 15% of the invoice price of the goods as a handling charge which shall be payable within 7 days of the Company issuing a written demand to the Customer.
3.7 In the event of any payments or part thereof remaining unpaid after such period of seven (7) days the Company in its absolute discretion may.
3.8 Notwithstanding the imposition of interest charges, such interest charges shall not be regarded as allowing any time for payment of any amount owing but are agreed as constituting compensation payable to the Company because of delay in payment. Notwithstanding the imposition of any interest charges in respect of monies unpaid, all such monies shall remain immediately due and payable to the Company and the Company shall be entitled to take legal proceedings at any time for recovery of any monies bearing interest charges pursuant to this Clause.
3.9 The Customer will indemnify the Company on an indemnity basis for all losses, damages, costs and other expenses whatsoever suffered by the Company as a result of any default by the Customer, including for the recovery of any unpaid amounts due to the Company under these Conditions.
3.10 The Customer agrees that all payments are to be made without retention.
3.11 In addition to the Company’s other rights set out in this Clause 3, the Customer agrees that the Company shall have the right (although it shall not be bound to do so) to suspend
delivery to the Customer of all or any outstanding goods, parts or services if the Customer is in default of any payment to the Company.
3.12 Where an invoice is rendered for servicing the Customer’s goods:
3.12.1 the goods of the Customer for which labour and material have been supplied by the Company in servicing shall become the property of the Customer and subject to these conditions where applicable until the invoice is paid in full; and
3.12.2 any part payment of the invoice shall be appropriated firstly for the cost of labour and thereafter to the cost of materials and parts.
4.0 CUSTOMER ACKNOWLEDGMENTS
4.1 Without limiting any other Conditions, the Customer acknowledges and agrees that:
4.1.1 any anticipated delivery dates given by the Company are estimates only and may be subject to change due to circumstances beyond the Company’s control such as, but not limited to, weather, industrial disputes, transport and third party/supplier delays, and the Company will have no liability to the Customer for any such delays or failure to deliver goods or services;
4.1.2 the Customer shall inspect the goods immediately upon delivery and shall within not more than fourteen (14) days from the date of delivery give notice in writing to the Company of any defect in the goods or of any failure by the Company to deliver goods as ordered by the Customer. If the Customer fails to give such written notice then the goods shall be deemed to be in all respects acceptable and in accordance with the order placed by the Customer;
4.1.3 it shall release and indemnify the Company from any liability incurred by the Customer or any third party from the use of the goods by the Customer, especially with respect to the use of the goods with respect to hazardous substances;
4.1.4 the Company has provided the Customer with anticipated design performance information only and shall not be liable for the actual performance levels of any goods, as this may be impacted by unknown or unforeseen circumstances or factors in the installation or operation of the goods within a wider system; and
4.1.5 the goods are delivered and installed to perform within specified parameters and maintenance requirements notified to the Customer, subject to the Customer’s
intended use notified to the Company on or prior to the date of this Contract. The Customer agrees to operate and maintain the goods within those parameters and
the Company shall not be liable for any loss or damage which may be suffered by the Customer as a result of any breach of this Clause.
5.0 RECOMMENDED PRICES
5.1 In the event that the Customer has purchased goods from the Company for resale, then the Company shall provide, and the Customer shall take note of, the Company’s list of recommended retail prices for such goods (‘the Manufactures Recommended Retail Price List’). The Company, at its discretion, may update the Manufactures Recommended Retail Price List at any time.
5.2 The parties acknowledge that the prices stated in the Manufactures Recommended Retail Price List are recommended prices only and there is no obligation on the Customer to comply with the recommendation.
6.1 Unless otherwise specified by the Company in writing, the Company grants the Customer a twelve (12) month warranty on the goods sold and on goods sold and installed (if the
installation was completed by the Company) to commence on the later of the date of delivery.
6.2 This warranty shall be conditional upon the Customer having operated and maintained the goods within the parameters notified to the Customer, by the Company, on the delivery of the goods and shall be void in the event that the Customer has not complied with the Company’s parameters and/or regular service maintenance schedule.
6.3 The Company makes no warranty, and disclaims all implied warranties of merchantability and fitness for a particular purpose, in connection with accessories, equipment, materials or components sold but not manufactured by the Company.
6.4 In addition to the warranty in Clause 6.1, the only conditions and warranties which are binding on the Company in respect of the state, quality or condition of the goods or services sold to the Customer are those imposed and required to be binding by statute (including the Australian Consumer Law and the Competition and Consumer Act 2010).
6.5 Except as expressly provided herein, the Company shall not be liable to the Customer for any liability, (including liability in negligence) loss or damage of whatsoever nature,
consequential or otherwise, howsoever suffered or incurred by the Customer, caused by or resulting directly or indirectly from the goods or services provided by the Company.
6.6 In the event that the Customer is a consumer for the purposes of the Australia Consumer Law, the parties agree that the following provisions will apply and override any other conditions in
this Clause 6.0 to the extent of any inconsistency:
6.6.1 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement of the goods or a refund for a major machine failure. You are also entitled to have the goods repaired or replaced if the goods fail to
be of acceptable quality and the failure does not amount to a major failure.
6.6.2 Should the Customer ever need to make a warranty related enquiry about the goods, the Customer must cease using the goods and contact the Company by telephone 1800 029 300 or in writing to 10-16 Smith Street, Thebarton, South Australia 5031 and provide the model number, copy of purchase receipt and address details where the goods were delivered.
6.6.3 The Customer is responsible for the costs of returning defective goods to the Company or its agent, except where the Company agrees otherwise in writing. The Customer must preserve the goods intact and make the goods available for the Company to inspect.
6.6.4 The benefits provided to the Customer under this warranty are in addition to other rights and remedies available to the Customer at law.
7.0 NO LIABILITY OF THE COMPANY AND INDEMNITY BY THE CUSTOMER
7.1 To the extent permitted by law the Company shall not be responsible in negligence, tort, contract or otherwise howsoever for all and any loss, damage, or injury of any kind resulting from the goods or services provided by the Company or the use of the goods by any person or for misdelivery or failure to deliver or delay in delivery of the goods
7.2 This clause shall apply whether or not such loss, damage, or injury or misdelivery or failure to deliver or delay in delivery of the goods occurs by negligent, reckless or wilful acts or default of the Company, or occurs in the course of the performance or purported performance by the Company of this Contract or whether or not the events or omissions are in the contemplation of the Company and/or the Customer or whether or not such events or omissions are foreseeable by them or either of them.
7.3 The disclaimer extends to include not only loss or damage to the goods but also loss, damage or injury to any person, property or thing during or resulting from the performance or purported performance of or want of performance or breach of the Contract howsoever caused including but not limited to any negligence, recklessness or wilfulness of the Company.
7.4 The Customer agrees to free, release, hold harmless, indemnify and keep indemnified the Company from all claims, liabilities, damages, costs and expenses arising out of any matter whatsoever about any aspect of the goods or the services or in any way arising out of any act or omissions of the Company to perform any of the Company’s obligations hereunder, any breach of or failure by the Customer to comply with any of its obligations hereunder, and otherwise howsoever whether such claims, liabilities, damages, costs and expenses be special, direct, or indirect, economic, consequential or inconsequential past present or future, or in the nature of any personal injury and the Company is in no circumstances (whatever the cause) liable in contract, tort (including without limitation negligence or breach of statutory duty) or otherwise to compensate the Customer for:
7.4.1 any increased costs or expenses;
7.4.2 any loss of profit, revenue, business, contracts or anticipated savings; or
7.4.3 any special, economic, indirect or consequential, loss, damage, expense or injury whatsoever and howsoever arising; and
7.4.4 any damage to any person for personal injury.
7.5 All the rights, immunities, benefits and limitations of liability granted to the Company by these conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of the Contract or any of the conditions hereof by the Company.
7.6 Every exemption and limitation herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled hereunder shall also be available and shall extend to protect:
7.6.1 all directors of the Company;
7.6.2 every employee, servant or agent of the Company or of a subcontractor; and
7.6.3 all persons who are or might be vicariously liable for the acts or omissions of all persons falling within subclauses 7.6.1 to 7.6.3 inclusive, and for the purposes of this clause the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons.
8.0 SECURITY FOR GOODS
8.1 Words and phrases used in this Clause 8.0 which are defined in the Personal Property Securities Act 2009 (“Cth”) (“the PPS Act”) have the same meanings as the meanings set out in that Act.
8.2 Legal ownership of goods supplied by the Company will not pass to the Customer until the Customer has paid all monies owing to the Company for those particular goods.
8.3 The risk in the goods (including, but not limited to, loss or damage to the goods) will pass to the Customer upon delivery of the goods by the Company to the Customer, its agent or its
carrier. It shall at all times be the Customer’s responsibility to effect insurance necessary to cover the value of the goods.
8.4 The Customer hereby grants a security interest to the Company over all goods supplied by the Company pursuant to these Conditions until the Customer has made payment of all monies owing to the Company for those particular goods and these Conditions constitute a Security Agreement for the purposes of the PPS Act.
8.5 The security interest held by the Company includes an interest in goods that become an accession to other goods.
8.6 Until such time as the Customer has made payment of all monies owing for goods supplied by the Company:
8.6.1 The Company grants the Customer a license to use and maintain the goods;
8.6.2 The Customer will not otherwise deal with the goods in any way which may be adverse to the Company;
8.6.3 The Customer will not charge the goods in any way nor grant or otherwise give any interest in the goods to any other person except in accordance with this Clause 8.0;
8.6.4 In the event that payment has not been received within the Company’s conditions, the
Company may give notice in writing to the Customer to return the goods or any part of
them to the Company, in which event the Customer will forfeit any rights to obtain
ownership of the goods, the license granted pursuant to Clause 8.6.1 will be terminated and any monies partly paid by the Customer will be forfeited to the Company;
8.6.5 If the Customer fails to comply with a request to return the goods to the Company, or if the Customer commits any act of bankruptcy or insolvency, or if an administrator or liquidator is appointed to the Customer, then the Company (or its agents) may enter upon and into land and premises owned, occupied or used by the Customer where the goods are situated, disassemble the goods and take possession of the goods;
8.6.6 The Company may, if the Customer is in default in payment for the goods, retake possession of the goods without notice, without being liable for any losses incurred or damage sustained as a direct or indirect consequence of the Company retaking possession of the goods. The Customer agrees that the Company has access to its premises for the purpose of retaking possession of the goods. The Company shall have all of the above rights notwithstanding that the Customer defaults or commits an act of bankruptcy or a receiver is appointed to the Customer’s business or the Customer goes in to liquidation. The Customer acknowledges that the vendor has the right to resell any of the goods of which it has retaken possession.
8.6.7 The Customer expressly authorizes the Company, despite any arrangement the Customer may have made with any third party, to enter any premises and take immediate possession of the goods and remove the goods and this Contract will be terminated absolutely but without prejudice to any rights of the Company against the Customer for any breach of any condition of this Contract. In the event that the Company is forced to repossess the goods the Customer agrees to free, release, hold harmless, indemnify and keep indemnified the Company, its employees, servants or agents, from all claims (including claims from a third party) liabilities, damages, cost and expenses which may arise (either directly or indirectly) against the Company for repossessing the goods.
8.7 The Customer must do all things necessary to assist the Company to perfect and enforce its security interest to the fullest extent available at law, including enabling the Company
to gain first priority for its security interest. Accordingly, the Customer must not grant a security interest in the goods to any other party without the Company’s prior written consent.
8.8 The parties agree that Sections 96, 125, 142 and 143 of the PPS Act shall not apply to these Conditions.
8.9 The Customer waives its rights to receive any notifications, verifications, statements, disclosures, proposals and any other documentation specified under Sections 95, 121(4), 130,
132(3)(d), 132(4), 135, 157 of the PPS Act
8.10 For the purposes of Section 275 of the PPS Act, the Customer agrees not to disclose any information provided by the Company under that Section to any third party without the
Company’s prior consent in writing (unless required by law or the information has entered the public domain).
8.11 The Customer indemnifies the Company for any costs, fees and expenses the Company incurs in the enforcement of the security interest.
812 Receipt by the Company of any form of payment for goods other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised
and until then the security interest will continue to apply in relation to those goods.
9.0 INTELLECTUAL PROPERTY
9.1 The Customer agrees that the intellectual property in all goods supplied by the Company, including in any designs, drawings, plans or other documents produced by the Company for the
Customer, shall be and remain the absolute property of the Company irrespective of any variation or other work on such items completed by the Customer.
9.2 Any and all intellectual property rights and inventions arising during the course of the Company’s supply of goods to the Customer and resulting from the services provided by the
Company are acknowledged to be the sole and absolute property of the Company.
9.3 The parties agree that any improvements to the goods or the processes of the Company suggested or provided by the Customer shall be deemed to be the intellectual property of
9.4 The Customer agrees that it shall hold confidential all intellectual property of the Company and shall not disclose such information to any party without the prior written consent of the Company, unless required to do so by law.
9.5 Intellectual property rights mean all intellectual property rights, including but not limited to:
9.5.1 patents, copyright, inventions, designs and trademarks; and
9.5.2 any application or right to apply for registration of any of the rights referred to in Clause 9.5.1.
10.0 AUTHORITY TO VARY TERMS AND CONDITIONS
10.1 No manager, employee, servant, agent or representative of the Company (other than a director and then only in writing) has any authority to vary these Conditions or any of them and without
limiting the generality of the foregoing no warranty, representation, promise, agreement, term or condition whether express or implied made by any such person shall be deemed to be included in or form part of these Conditions or operate in any way collateral to these Conditions other than those warranties, representations, promises, agreements, terms or conditions which expressly appear herein or which are implied by law and not expressly excluded herein.
11.1 In these Terms:
11.1.1 “GST” or “Goods and Services tax” means a tax, duty, levy, charge or deduction, imposed by or under a GST law, together with any related additional tax, interest,
penalty, fine or other amount imposed in respect of the above.
11.1.2 “GST law” means the same as in the A New Tax System (Goods and Services Tax) Act 1999.
11.1.3 “Supply” has the same meaning as given by section 195 of the GST law.
11.2 The parties agree that, unless otherwise stated, any consideration payable to the Company shall be exclusive of GST and the Customer shall pay the amount of GST to the Company with the payment of the consideration.
11.3 To the extent that any moneys payable by the Customer to the Company under an indemnity in this contract or for a breach of the Conditions are regarded, for the purposes of the GST law, as
consideration (in whole or part) for a taxable Supply made by the Company, the Customer must pay an additional amount to the Company calculated by multiplying the prevailing GST rate
by the consideration payable to the Company for the relevant supply.
12.1 The Customer shall not be entitled to withhold or set off payment of any amount due to the Company under these Conditions whether in respect of any claim of the Customer in respect of faulty or defective goods or services or for any other reason which is contested or liability for which is not admitted by the Company.
12.2 At the Company’s absolute discretion returned goods are subject to restocking fee of 15% of purchase price.
12.3 No order or accepted quotation may be cancelled except with consent in writing and on terms which will indemnify the Company against all losses.
12.4 Any delay in or failure by the Company to insist upon strict performance of any term, warranty or condition of these Conditions shall not be deemed a waiver thereof or of any rights the Company may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
12.5 If any provision of these Conditions shall be determined by any statute or any court having jurisdiction in relation thereto to be illegal, invalid, void, voidable or unenforceable the legality
validity or enforceability of the remainder of these Conditions shall not be affected and the illegal, invalid, void, voidable or unenforceable provision shall be deemed deleted to the same
extent and effect as if never incorporated herein but the remainder of these Conditions shall continue in full force and effect.
12.6 These Conditions shall survive any accepted repudiation or other termination of the contract to supply to goods or services existing between the Company and the Customer.
12.7 These Conditions shall be governed and interpreted according to the laws of South Australia and the parties agree to submit to the non- exclusive jurisdiction of the courts of South Australia.
- DISPUTE RESOLUTION PROCEDURE
- Resolution of Disputes
The parties to the contract will use their best endeavours to resolve any disputes arising out of, or in connection with, this contract amicably and in a spirit of cooperation.
- No Proceedings
A party must not start court proceedings in respect of a dispute arising out of this contract (Dispute) unless that party has complied with this clause.
13.3 Notification of Dispute
A party claiming that a Dispute has arisen must notify the other party or parties to the Dispute giving details of the Dispute.
13.4 Best Endeavours to Resolve Dispute
During the 30 day period (or any longer period agreed in writing by the parties to the Dispute) after a
notice is given under subclause 18.3. (Initial Period), all parties to the Dispute must use their best endeavours to resolve the Dispute.
- Appointment of Mediator
If the parties are unable to resolve the Dispute within the Initial Period, all parties agree that the Dispute must be referred for mediation in accordance with the rules for mediation of commercial disputes (or their replacement) for the time being of the Institute of Arbitrators and Mediators Australia at the request of any party to:
- a mediator appointed by the parties and to which the parties agree unanimously; or
- if the parties are unable to agree unanimously on a mediator within 7 days after the end of the Initial Period, a mediator nominated by the then current President (or equivalent) of the Institute of Arbitrators and Mediators Australia or the President’s nominee; provided that the mediation is commenced within 7 days of the referral subject to the availability of the mediator or such later time as may be agreed by the parties.
- Role of Mediator
The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a party unless that party has so agreed in writing.
- Appointment of Arbitrator
If the Dispute is not resolved within 30 days following the date of appointment of the mediator, or such other period as agreed between the parties in writing;
- the mediation will cease; and
- the Dispute must be referred by the parties within 7 days to a single arbitrator as agreed between the parties or failing agreement, as appointed by the President of the Law Society of South Australia, and the arbitration will be conducted in accordance with the laws governing commercial arbitration in South Australia.
Any information or documents disclosed by a Party under this clause:-
- must be kept confidential; and may not be used, including, without limitation, in any subsequent litigation, except to attempt to resolve the Dispute.
- PRIVACY ACT 1988
14.1 To the maximum extent permitted by law, I/we the undersigned individuals and in the case where the Applicant is a company, each of its directors, hereby authorize and unconditionally grant our consent to the Company to obtain from a credit reporting agency or other person or company, information and/or reports concerning the Applicant (and if a company, its directors) from time to time during the continuance of the Applicant’s credit account so as to assist the Company in deciding whether to grant or continue credit to the Applicant (and if a company, its directors), or for collecting overdue payments in respect of credit provided to the Applicant.
14.2 To the maximum extent permitted by law, I/we authorize and consent the Company to obtain and disclose information about the Applicant and their credit worthiness (including identity, particulars and details of overdue payments) to and from credit reporting agencies and other credit providers who have, are, or intend to, enter into some commercial or business dealings with either of them and/or extend credit to them.
14.3 For the purposes of clauses 14.1, 14.2,and 15.1 “report” and “information” include any credit report originating from a credit agency or any other record or information that has any bearing on the Applicant’s credit worthiness, credit standing, credit history, credit capacity and personal information.
15.0 PRIVACY STATEMENT
15.1 All personal information collected by the Company including credit reference reports obtained from third parties, is collected to be used for the purposes of account establishment, payment and administration, and for other purposes set out above. It is not otherwise to be disclosed to any third party, except for the Company’s agents and advisors involved in the Company’s credit provision and debt collection processes.
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