1.1 ‘Supplier’ shall mean Furness Group Pty Ltd ACN 151 553 365 ATF Summit Group Trust ABN 72 958 631 876 trading as “Vorstrom Vacuum Equipment”, its successors and assigns or any person acting on behalf of and with the authority of the Supplier.
1.2 ‘Customer’ shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Supplier to the Customer.
1.3 ‘Goods’ shall mean any goods or materials utilised in the provision or supply of the Works, including the Customer Equipment and Materials and other Supplier materials used in order to manufacture the Manufactured Product.
1.4 ‘Works’ shall mean the whole of the work (including the provision of any goods or services through design and manufacturing, and the delivery of the Manufactured Product) described on the invoices, quotation, work authorisation or any other forms as provided by the Supplier to the Customer, carried out and completed by the Supplier in accordance with these Terms and Conditions.
1.5 ‘Manufactured Product’ shall mean the manufactured product and associated Goods manufactured and assembled by the Supplier for the Customer’s use in accordance with the Works.
1.6 ‘Price’ shall mean the price payable for the Works as agreed between the Supplier and the Customer in accordance with clause 4 of this agreement.
1.7 ‘Claim’ shall mean a claim, demand, remedy, suit, injury, damage, loss, cost, Liability, action, proceeding, right of action, claim for compensation or reimbursement or Liability incurred by or to be made or recovered by or against an entity, however arising and whether ascertained or unascertained, or immediate, future or contingent.
2. Standard of Works
2.1 The Supplier must carry out and complete the Works in accordance with this Agreement:
a) in an appropriate and skilful way using reasonable care and skill; and
b) in accordance with all applicable laws and legal requirements.
3. Customer’s Obligations
3.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts the relevant quotation provided by the Supplier to the Customer.
3.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
4. Invoicing and Payment
4.1 At the Supplier’s sole discretion, the Price shall be either:
a) as indicated on invoices provided by the Seller to the Customer in respect of the Works; or
b) the Supplier’s quoted Price (subject to clause 4.2) which shall be binding upon the Customer provided that the Customer shall accept the Supplier’s quotation in writing within thirty (30) days.
4.2 The Supplier reserves the right to change the Price in the event of a variation to the Supplier’s quotation.
4.3 The Customer must pay to the Supplier the Price in accordance with this Agreement and in accordance with the milestones and dates outlined in the invoices, quotation, work authorisation or any other forms provided by the Supplier to the Customer.
4.4 As soon as practicable, the Supplier will submit to the Customer a Tax Invoice that is in accordance with A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time to time, for the fee due and payable by the Customer.
4.5 Time for payment for the Works shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.
4.6 If the Customer fails to make any payment under this Agreement on the due date and in the manner specified, then the Customer will pay interest at an interest rate of 5% per annum to the Supplier on the unpaid amount calculated on a daily basis from the due date until payment is made.
4.7 If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, and bank dishonour fees).
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of the Manufactured Product
5.1 Delivery of the Manufactured Product is taken to occur at the time that the Supplier (or the Supplier’s nominated carrier) delivers the Manufactured Product to the nominated delivery address (even if the Customer is not present) or the Customer removes the Manufactured Product from the Supplier’s Premises (“Delivery”).
5.2 The cost of Delivery is not included in the Price, and will be charged in addition to the Price.
5.3 The Customer must take Delivery by receipt or collection of the Manufactured Product whenever it is tendered for delivery.
5.4 In the event that the Customer is unable to take Delivery of the Manufactured Product as arranged, then the Supplier shall be entitled to charge fees for redelivery.
5.5 Any time or date given by the Supplier to the Customer is an estimate only. The Customer must still accept Delivery of the Manufactured Product even if it is late and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of the Delivery being late.
5.6 The Supplier and the Customer agree that ownership of the Manufactured Product shall not pass until the conditions contained in clause 4 have been adhered to.
6. Customer Equipment and Materials
6.1 ‘Customer Equipment and Materials’ shall mean any materials, goods or equipment provided by the Customer to the Supplier, including but not limited to any applicable vehicles, trailers required to be used to complete the Works.
6.2 The Customer may be required to provide Customer Equipment and Materials in order for the Works to be undertaken by the Supplier.
6.3 The Customer acknowledges that in order for the Supplier to complete the Works, the Customer’s Equipment and Materials may have to be stored at the Supplier’s premises.
6.4 The Customer undertakes that any of the Customer Equipment and Materials will be in all respects suitable for the provision of the Works and the Manufactured Product.
6.5 The Customer will, at its expense, replace any unsatisfactory Customer Equipment and Materials and will pay the Supplier for the cost of the Works already carried out on such Customer Equipment and Materials and for the cost of damages including the use of the Supplier’s materials and resources.
6.6 Except as otherwise expressly provided in this Agreement:
a) the Supplier will not be liable to the Customer or any other person for; and
b) the Customer hereby indemnifies and agrees to indemnify and hold harmless the Supplier from and against:
all costs, expenses, damages, losses, Claims and liabilities howsoever arising, or in connection with or on account of the use or storage of the Customer’s Equipment and Materials and for all acts or omissions of or attributable to the Supplier and the Customer hereby releases and forever discharges the Supplier from any and all such costs, expenses, damages, losses (including direct and indirect losses), Claims and liabilities.
7. Accuracy of Customer’s Plans and Measurements
7.1 The Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided, or approved by the Customer.
7.2 The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.3 In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the Manufactured Product, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or the Supplier places an order based on these measurements and quantities.
7.4 The Supplier accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause 7.
8. Estimated Completion Date
8.1 ‘Estimated Completion Date’ shall occur when the Manufactured Product is complete apart from minor Defects which do not prevent or unreasonably interfere with the Customer’s use of the Manufactured Product.
8.2 The Supplier must use its best commercial endeavours to complete the Manufactured Product by the Estimated Completion Date.
8.3 Provided that the Supplier has used all reasonable commercial endeavours to deliver the Manufactured Product by the Estimated Completion Date, the Supplier will not be liable to the Customer for any delay in delivery of the Manufactured Product or any part thereof.
9.1 Within 30 Business Days after the Supplier becomes aware that the Works are being, or will be, delayed for any reason, the Supplier may provide notice to the Customer stating:
a) the cause of delay;
b) the length of the delay; and
c) the extension, in Business Days, of the Estimated Completion Date being estimated by the Supplier as a result of the delay.
9.2 In the event that the Supplier is required to store Goods on behalf of the Customer (due to including not limited to, the storage of the Customer’s Customer Equipment and Materials due to delays caused the Customer), the Customer agrees to pay the Supplier storage costs of $500 per day.
10.1 ‘Variation’ shall mean a change in the scope of the Works arising from:
a) an increase, decrease, addition, or omission of work from the Works;
b) a change in the method or process for, or the sequence of, the carrying out of the Works;
c) an alteration to the specification of a material; or
d) changes in levels, dimensions, or the set out of the Works; and
10.2 At any time prior to the Estimated Completion Date, the Customer may provide the Supplier with a written request to carry out a Variation.
10.3 If the Customer proposes a Variation, it may give to the Supplier a written request for advice on:
a) the feasibility of the proposed Variation;
b) if the proposed Variation would increase any part of, or add to, the Works, the scope of work necessary to carry out and complete the proposed Variation;
c) the effect of the proposed Variation on the Estimated Completion Date and the, if any; and
d) the price, exclusive of the GST, for which the Supplier is prepared to carry out and complete the proposed Variation.
10.4 Within 15 Business Days after its receipt of the Customer’s written request, the Supplier must give to the Customer a written notice advising the Customer of the matters requested.
10.5 On completion of a Variation by the Supplier, the Price is adjusted by:
a) if the Customer and the Supplier have agreed a price for the Variation, that price; or
b) if the Customer and the Supplier have not agreed a price for the Variation, the reasonable value of the Variation, including a reasonable allowance for profit, overheads and administrative costs.
10.6 The Supplier is not required to agree to the Customer’s request for a Variation.
11. Suspension of the Works
11.1 If the Customer fails to pay the whole or any part of an amount due to be paid to the Supplier in accordance with clause 4, the Supplier may serve a written notice on the Customer of the Supplier’s intention to suspend carrying out the Works.
11.2 The Supplier may suspend carrying out the Works if at least 7 Business Days have passed since the Supplier gave notice of its intention to do so to the Customer in accordance with clause 11.1.
11.3 If the Supplier, in exercising the right to suspend carrying out the Works, incurs any loss or expenses as a result of the removal by the Customer from the Works any part of the Works, the Customer must pay to the Supplier, as part of its next progress claim, the losses or expenses which are reasonably evidenced by the Supplier’s documentary evidence.
11.4 If the Supplier suspends carrying out the Works pursuant to clause 11.2, or the Customer directs the Supplier to suspend the whole or part of the Works, the Supplier is not liable for any loss or damage suffered by the Customer because of the Supplier not carrying out the Works during the period of suspension.
11.5 The Supplier retains the right for full payment of the Agreement Price from the Customer if Works are suspended.
12. Inspection of the Works
12.1 It is the Customer’s obligation to inspect the Works at such reasonable times, dates and places as the Supplier notifies to the Customer.
12.2 If the Customer fails to inspect the Works within 15 Business Days of notification from the Supplier that the Works are ready for inspection, then the Customer will be seemed to have accepted the Works, waived all rights of inspection and consequent to inspection to have waived all rights in respect of all visible Defects and to have those Defects rectified.
13. Risk and Damages
13.1 Risk of damage to or loss of the Manufactured Product passes to the Customer on Delivery and the Customer must insure the Manufactured Product on or before Delivery.
13.2 If the Manufactured Product is damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Manufactured Product. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries
13.3 If the Customer requests the Supplier to leave the Manufactured Product outside the Supplier’s premises for collection or to deliver the Manufactured Product to an unattended location then the Manufactured Product shall be left at the Customer’s sole risk.
13.4 The Customer acknowledges that Manufactured Product supplied may:
a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
b) expand, contract or distort as a result of exposure to heat, cold, weather;
c) fair wear and tear;
d) mark or stain if exposed to certain substances; and
e) be damaged or disfigured by impact.
13.5 While every effort will be taken by the Supplier to match colour of products, the Supplier will take no responsibility for any between sale samples and the Manufactured Product.
13.6 Where the Supplier is required to install the Goods the Customer warrants that the structure of the Customer Equipment and Materials in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto, and the Supplier shall not be liable for any Claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
14. Transfer of Title
14.1 The Supplier and the Customer agree that ownership of the Manufactured Product shall not pass until:
a) the Customer has paid the Supplier all amounts owing to the Supplier; and
b) the Customer has met all of its other obligations to the Supplier.
14.2 It is further agreed that:
a) the Customer holds the benefit of the Customer’s insurance of the Manufactured Product on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Manufactured Product being lost, damaged or destroyed.
b) the Customer should not convert or process the Manufactured Product or intermix them with other goods but if the Customer does so then the Customer does so at its own risk.
c) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Manufactured Product is kept and recover possession of the Manufactured Product.
d) the Supplier may recover possession of any Manufactured Product in transit whether or not Delivery has occurred.
e) the Customer shall not charge or grant an encumbrance over the Manufactured Product nor grant nor otherwise give away any interest in the Manufactured Product or Goods while they remain the property of the Supplier.
f) The Supplier may commence proceedings to recover the price of the Manufactured Product or Goods sold notwithstanding that ownership of the Manufactured Product or Goods has not passed to the Customer.
15. Personal Property Securities Act 2009 (“PPSA”)
15.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given by the PPSA.
15.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Customer to the Supplier for services – that have previously been supplied and that will be supplied in the future by the Supplier to the Customer.
15.3 The Customer undertakes to:
a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to;
i. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
ii. register any other document required to be registered by the PPSA; or
iii. correct a defect in a statement referred to in clause 15.3(a)(i) or 15.3(a)(ii);
b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Supplier;
e) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
15.4 The Supplier and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
15.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
15.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
15.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
15.8 The Customer must unconditionally ractify any actions taken by the Supplier under clauses 15.3 to 15.5.
15.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
16. Security and Charge
16.1 In consideration of the Supplier agreeing to supply the Works, the Customer charges all of its rights, title and interest (whether joint or several) in any Customer Equipment and Materials, land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
16.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
16.3 The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf.
17. Defects and Warranties
17.1 ‘Defect’ shall mean any part of the Works or Manufactured Product that is defective, incomplete, or not otherwise carried out in accordance with this Agreement.
17.2 ‘Liability’ shall mean any liability, loss, damage, outgoing, cost or expense of whatever description.
17.3 The Customer must notify the Supplier in writing of any evident Defect/damage, or failure to comply with the Supplier Quotation Document.
17.4 The Customer must notify any other alleged Defect in the Manufactured Product as soon as reasonably possible after any such Defect becomes evident (within at least 2 Business Days). Upon such notification, the Customer must allow the Supplier to inspect the Manufactured Product, or a third party as appointed by the Supplier.
17.5 The Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality, fitness for purpose or suitability of the Manufactured Product. The Supplier’s Liability in respect of these warranties is limited to the fullest extent permitted by law.
17.6 Subject to the Competition and Consumer Act 2010 no claim under this clause 17 shall be accepted by the Supplier unless the Customer’s account has been paid in full.
17.7 The Supplier’s Liability for any Defect or damage in the Manufactured Product is:
a) limited to manufacturing faults that occur within 12 months of the Manufactured Product being Delivered;
b) limited to the value of any express warranty provided to the Customer by the Supplier at the Supplier’s sole discretion;
c) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Goods;
d) otherwise negated absolutely.
17.8 Subject to the Competition and Consumer Act 2010, the Supplier shall not be liable for any Defect or damage which may be caused or partly caused by or arise as a result of:
a) the Customer failing to properly maintain or store any Manufactured Product;
b) the Customer using the Manufactured Product for any purpose other than that for which they were designed;
c) the Customer continuing the use of any Manufactured Product after any Defect became apparent or should have become apparent to a reasonably prudent operator or user;
d) the Customer failing to follow any instructions or guidelines provided by the Supplier;
e) fair wear and tear, any accident, or act of God.
17.9 It is the Supplier’s sole discretion to determine whether or not a particular Defect will be covered under warranty. The Supplier reserves the right to request photographs, or inspect your product in person, before making a determination as to a claim under warranty.
17.10 Any Goods manufactured or provided by third parties will be subject to the relevant third party’s warranties and other applicable terms and conditions.
18. Servicing and Maintenance
18.1 The Customer must maintain the Final Product in accordance with the maintenance and operation schedule.
18.2 Any service and maintenance provided by the Supplier to the Customer will, in the Supplier’s discretion, be subject to extra fees and additional terms and conditions.
18.3 Any advice, recommendation, information, assistance or service provided by the Supplier in relation to the Goods, Works or the Manufactured Product is supplied in good faith, is based on the Supplier’s own knowledge and experience and shall be accepted without Liability on the part of the Supplier and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods, Works or the Manufactured Product.
19.1 By the Start Date, the Customer must, at its own cost, effect and maintain for the duration of this Agreement all reasonable insurances.
19.2 If the Supplier gives to the Customer a written request for documentary evidence that the Customer has effected and maintained the insurance policies required in accordance with this clause, the Customer must within 3 Business Days give to the Supplier such documentary evidence.
20.1 The Supplier shall be under no Liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions or arising out of, or in connection with, the Works, Goods and use of the Manufactured Product.
20.2 Under any clause of this Agreement, the Supplier’s Liability shall be limited to damages which under no circumstances shall exceed the Agreement Price, or the Supplier’s applicable insurance.
21.1 The Customer indemnifies the Supplier against any Liability for personal injury or death of a person, or damage to property, arising out of, or in connection with, the Works, Goods and Manufactured Product.
22. Intellectual Property
22.1 ‘Intellectual Property’ shall mean all intellectual property or industrial property anywhere in the world (whether registered, unregistered or unregistrable) including inventions, ideas, concepts, discoveries, data, notes, compilations, databases, secret processes, formulae, scientific and technical information, Confidential Information, trade marks, business names, company names, service marks, copyright, designs, patents, know-how and trade secrets.
22.2 Where the Supplier has designed, drawn or developed designs or plans as a part of the Works (“Supplier Designs”), then the Intellectual Property in the Supplier’s Designs, any variations and amendments to the Supplier’s Designs, and other designs, drawings and documents shall remain the Intellectual Property of the Supplier.
22.3 The Supplier grants the Customer a non-exclusive licence to use the Supplier’s Designs for the Supplier to complete the Works for the Customer, and for no other purpose.
22.4 The Customer warrants that all designs, specifications or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
22.5 The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or further business use, any documents, designs, drawings or Goods which the Supplier has created for the Customer.
23. Default and Termination
23.1 ‘Insolvent’ shall mean where either of the Customer or Supplier:
a) commits an act of bankruptcy or an act of insolvency;
b) becomes bankrupt;
c) goes into administration, liquidation, or receivership;
d) assigns assets for the benefit of creditors generally; or
e) makes a composition or other arrangement with creditors.
23.2 If either party becomes Insolvent, the other party may give to the Insolvent party a written notice terminating this Agreement for insolvency.
23.3 The Supplier may cancel any contract to which these terms and conditions apply or cancel Delivery of the Manufactured Product at any time before the Manufactured Product is delivered by giving written notice to the Customer.
23.4 In the event that the Customer cancels delivery of the Manufactured Product the Customer 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).
23.5 Cancellation of orders for the Manufactured Product made to the Supplier’s specifications, or for non-stocklist items, will be denied once production has commenced, or an order has been placed.
23.6 The right of a party to terminate this Agreement in accordance with this clause is in addition to any other power, right, or remedy that the party may have at law or in equity.
24. Disputed Fees
24.1 If the Customer disputes the whole or any portion of an amount claimed in a Tax Invoice submitted by the Supplier to the Customer, the Customer must:
a) give notice of the dispute in writing to the Supplier within 3 Business Days of receipt of the Tax Invoice;
b) pay the Tax Invoice in full; and
c) enter into discussions with the Supplier in relation to the subject matter of the dispute with a view to resolving the dispute.
25.1 The Supplier is entitled to set-off against any amount due to the Customer in accordance with this Agreement, any amount due to the Supplier from the Customer in respect of the Works under this Agreement.
25.2 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
25.3 The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
25.4 The Supplier may transfer all of its rights and obligations to any one of its affiliated entities, which shall be bound, mutatis mutandis, by the terms of this Agreement, without the Customer’s consent.
25.5 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired
25.6 No provision or term of this Agreement may be waived, varied, discharged, or released by a party unless such waiver, variation, discharge, or release is evidenced in writing.
25.7 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.