CONDITIONS RELATING TO SALE AND/OR HIRE OF GOODS SERVICES AND EQUIPMENT RELATING TO NJW DESIGNS PTY LTD
1.0 - Definitions relating to these Terms and Conditions
1.1 - “the Company” shall mean NJW DESIGNS PTY LTD, its successor and assigns or any person acting on behalf of and with the authority of NJW DESIGNS PTY LTD.
1.2 - “the 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 Company to the Customer.
1.3 - “the Director” shall mean the director of NJW DESIGNS PTY LTD.
1.4 - “Goods” shall mean all Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are described on the invoices, quotation, work authorisations or any other forms as provided by the Company to the Customer.
1.5 - “Services” shall mean all Services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 - “Scope” shall mean the information provided by the Customer to the Company to adequately Cost, Quote, Estimate and supply a final Price for Goods, Services and equipment lined out in this agreement.
1.7 - “Price” shall mean the Price payable for the Goods as agreed between the Company and the Customer in accordance with clause 4 of this contract.
1.8 - “this Agreement” shall refer to these terms and conditions when engaging with NJW DESIGNS PTY LTD to provide the necessary Goods, Services and equipment detailed in the scope from the Customer.
2.0 - Terms and Conditions relating to this Agreement
2.1 - This document sets out the full terms and conditions of the agreement made between the Company and the Customer for the sale and/or hire of goods, services and equipment.
2.2 - These conditions supersede all previous conditions and no person or employee of the Company shall be entitled to vary alter amend or waive any of these conditions unless approved in writing the director.
2.3 - All goods, services and scenery to be supplied by the Company will be supplied only under the terms and conditions of this agreement. These conditions supersede all previous conditions and will apply to both the present transactions and all future and subsequent dealings between the Company and Customer.
2.4 - No person or employee of the Company shall be entitled to vary alter amend or waive any of these conditions unless approved in writing by the Director of the Company.
2.5 - All goods and services are sold subject to any special conditions set out in writing and signed by the Director of the Company. Such special conditions shall be deemed to be incorporated herein.
3.0 - Obligations of the Customer
3.1 - The Company use its reasonable endeavours to fulfil its obligations to the Customer. It is hereby specifically agreed between the Customer and the Company that:
(a) - Unless effected by the Company the Customer shall be wholly responsible for the erection and striking of all scenery, sets and goods manufactured and/or supplied by the Company. The Company does not give any warranty that the articles manufactured by them comply with any local authority fire regulations and/or other statutory consents
and it is the specific obligation of the Customer that all permissions consents and approvals should be obtained by the Customer. The Company can supply and or recommend ways in which such regulations can be met if the Customer has made the Company aware of such requirements prior to the quotation being submitted.
(b) - The Company gives no warranty as to the suitability of any scenery or goods manufactured and/or supplied by them for subsequent erection in any structure or building and it shall be the Customer’s responsibility to ensure that all scenery or goods manufactured and/or supplied by the Company shall be suitable in size and character and for
the structure or building in which the same is to be installed. The Company can supply and or recommend ways in which such requirements can be met if the Customer has made the Company aware of such requirements prior to the quotation being submitted, this would incur an additional expense.
(c) - The Company will use its reasonable endeavours to ensure that all goods are manufactured and/or supplied in accordance with the Customer’s specification, the Company specifically reserves the right to alter any materials used in the manufacture of the goods and/or specifications thereof in its sole discretion and it is the Customer’s
responsibility to ensure that the construction of all items and use of materials is in accordance with the Customer’s requirements.
(d) - The Customer agrees to indemnify the Company against any claim made against the Company concerning the copyright in any set or design supplied by the Customer to the Company. In the event of the Company incurring any such liability of whatever nature, the Customer will indemnify the Company on a full indemnity basis including all
and any such loss and expense incurred by the Company howsoever arising.
(e) - The Customer shall supply electricity to the site and sufficient power points to enable the Company to comply with its obligations under this Agreement.
(f) - The Customer shall be liable and pay or reimburse the Company in respect of all additional expenses incurred by the Company due to unforeseen difficulties with access to or the site of the proposed works.
(g) - The Customer shall replace or refund the full reinstatement value all goods and equipment hired to the Customer which is stolen damaged or destroyed.
(h) - The Company shall not be liable for any acts or omissions of subcontractors whether nominated by the Customer or the Company and the Customer shall be liable for any loss sustained by the Company as a result thereof.
(i) - The Customer shall be responsible for all additional expenses incurred by the Company because of additional works, services and hiring of goods not described or detailed in the scope whether requested orally or in writing by or on behalf of an agent or employee of the Customer.
(j) - Without prejudice to the generality of the conditions herein the Company shall not be liable for any losses or expenses incurred by the Customer because of the Company’s failure to complete the works, or complete the works by the stipulated delivery time because of variations in the scope provided by the Customer or delay in delivery of
goods, labour and equipment by any courier or recruitment company employed by the Customer or the Company.
(k) - The person signing this agreement on behalf of the Customer accepts that he or she shall be liable for the Customer’s obligations hereunder if the Customer defaults.
3.2 - All orders accepted by the Company are subject to variation and cancellation by the Company without prejudice to the Company’s accrued rights if due performance is impracticable due to act of God, war, civil commotion, riot, strikes, lockouts, fire, drought, flood, destruction or damage to premises plant or machinery, explosion,
shortage, failure of fuel materials or transportation, acts of Governments, Local or Public Authorities or other causes beyond the Company’s control or owing to the inability to procure materials or goods except at enhanced prices due to any of the aforesaid or any other causes. The Company shall not be responsible for any failure or inability to
supply due to such contingencies.
4.0 - Price and Payments
4.1 - At the Company’s sole discretion the Price shall be either:
(a) - as indicated on invoices provided by the Company to the Customer in respect of Goods supplied; or
(b) - the Company’s quoted Price (subject to clause 4.2) which shall be binding upon the Company if the Customer shall accept the Company’s quotations in writing within (30) days.
4.2 - The Company reserves the right to change the Price in the event of a variation to the Company’s quotation. Any variation from the plan of scheduled works or specifications outlined in the scope (including, but not limited to, any variations due to unforeseen circumstances, or because of increases to the Company in the cost of materials and
labour) will be charged for based on the Company’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 - The Company may submit detailed progress payment claims in accordance with the Company’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
4.4 - At the Company’s sole discretion a deposit may be required.
4.5 - At the Company’s sole discretion:
(a) - payment shall me due on delivery of the Goods; or
(b) - payment for approved Customers shall be made by instalments in accordance with the Company’s payment schedule.
4.6 - Time for payment for the Goods 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 in (7) days following the date of the invoice.
4.7 - Payment will be made by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Company.
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.
4.9 - Until the Company has been paid in full for the Goods, Services and equipment:
(a) - The legal and beneficial ownership of the Good supplied shall remain with the Company (although the risk therein passes to the Customer at the point where delivery begins, or if earlier, the date when the Company notify the Customer that the goods are ready for delivery or collection in accordance with clause 8.1 hereof).
(b) - At the Customers expense the Company may recover those goods, services or equipment at any time from the Customer if in the Customer’s possession should the amount outstanding from the Customer to the Company in any respect of any goods, services or equipment supplied shall remain unpaid after the due date for payment has
passed and for that purpose the Company and the Company’s servants or agents shall be entitled to entre unhindered upon the land or the buildings upon which the goods, services or equipment is situated and the Customer shall forthwith supply the Company upon request with the full details of the whereabouts of goods, services or equipment
and such other information at the Company may reasonably and properly require.
(c) - If monies are due from the Customer as aforesaid and the Customer being in possession or control thereof effects any sale or dispossession thereof which confers any rights of title in or against the goods in favour of any third party the Customer shall until all monies whatsoever and howsoever due from the Customer have been paid stand
possessed of the proceeds of such sale or disposition or of any right to receive the same as a trustee for the Company to apply the same in satisfaction of any monies due from the Customer. Without prejudice to any other rights or remedies that the Company may have, the Company shall have the right to proceed against the Customer’s own
customer to the extent that their own customer’s account with them is unpaid.
(d) - For so long as any goods remain in the Company’s legal and beneficial ownership or in the physical possession custody or control of the Customer the Customer shall stand possessed of such goods as Bailee for the Company (notwithstanding that such goods may be at the buyer’s risk as hereinbefore provided).
(e) – If the Customer does dispose of the goods any warranties conditions or representations given made or implied by the Company to any third party shall not be binding on the Company and the Company shall be indemnified by the Customer in relation thereto.
4.11 - The Company reserves the right to vary prices (whether specifically quoted or otherwise) to take account of increases in cost of raw materials manufacture, transport or wages arising before dispatch.
5.0 – Delivery of Goods, Services and Equipment
5.01 - At the Company’s sole discretion the delivery of the Goods, Services and Equipment shall take place when:
(a) - the Customer takes possession of the Goods at the Customer’s nominated address (in the event the Goods, services and equipment is delivered by the Company or the Company’s nominated carrier); or
(b) - the Customer’s nominated carrier takes possession of the Goods, Services and Equipment in which even the carries shall be deemed to be the Customers agent.
5.02 - At the Company’s sole discretion the costs of delivery are:
(a) - included in the Price; or
(b) - in addition to the Price; or
(c) - for the Customer’s account.
5.03 - The Customer shall make all arrangements necessary to take delivery of the Goods and Equipment whenever they are tendered for delivery. If the Customer is unable to take delivery of the Goods or Equipment as arranged, then the Company’s shall be entitled to charge a reasonable fee for redelivery.
5.04 - Delivery of the Goods, Services or equipment to a third party nominated by the Customer is deemed to be delivery to the Customer for this agreement.
5.05 - The Company may deliver the Goods, Services or Equipment in separate instalments. Each instalment shall be invoiced and paid in accordance with the provisions laid out in these terms and conditions.
5.06 - Where collection or delivery is made or is to be made by instalments, any non-delivery or delay of installation shall not entitle the Customer to cancel the remainder of the deliveries or any of them.
5.07 - The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
5.08 - The Company shall not be liable for any loss or damage incurred by the Customer whatsoever due to failure by the Company to deliver the Goods, Services, Equipment (or any of them) promptly or at all, where due to circumstances beyond the control of the Company.
5.09 - Whilst the Company shall use its reasonable endeavours to effect any delivery or make available any collection in accordance with pre-arranged times and dates, any time or date named by the Company for collection or delivery is given and intended as an estimate only and the Company shall not be liable to make good any damage or loss
whether arising directly or indirectly out of any delay in collection or delivery.
5.10 - It is the Customer’s responsibility to check carefully the quantity and type of goods sold or delivered and claims for non-delivery of any goods must be made in writing within three days of the date upon which they should have been delivered or forthwith upon receipt of the Company’s invoice whichever is the earliest.
5.11 - In respect of non-delivery or late delivery or defective goods the Company shall not be liable for any claim for loss or profits, machine time or any other consequential loss or damage.
5.12 - If the Customer fails to collect Goods, Services or Equipment manufactured and/or supplied by the Company on the due date for collection or if the Company are unable to deliver the same to the Customer then the Company shall have the right by notice in writing to require the Customer to collect the said goods within a period of 48 hours.
After having received such notice after which the Company shall be entitled without prejudice to any other right or remedy (including the Company’s right to full payment) to destroy the goods or to dismantle the same and re-use the component parts for its own use. Without prejudice to the above the Company shall be entitled to charge a storage
fee in respect of all goods that are not collected on the due date for collection or which the Company are unable to deliver.
5.13 - The Company reserves the right to charge collection or delivery fees unless the same is specifically referred to as being included in any quotation issued by the Company.
6.0 - Risk and Insurances
6.1 -If the Company retains ownership of the Goods and Equipment nonetheless, all risk for the Goods and Equipment passes to the Customer on delivery or if earlier the date when the Company notifies the Customer that the goods are ready for delivery or collection.
6.2 - If any of the Goods or Equipment are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods and Equipment. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to
receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
6.3 - Where the Customer expressly requests the Company to leave Goods or Equipment outside the Company’s premises for collection or to deliver the Goods or Equipment to an unattended location then such Good and Equipment shall be left at the Customers sole risk and it shall be the Customers responsibility to ensure the Goods and
Equipment are insuring adequately or at all.
6.4 - It is the Customers responsibility to insure all Goods and Equipment purchased or hired (with ownership remaining with the Company) against all risks associated with such Goods and Equipment.
6.5 - The Company shall not be responsible for any loss of damage caused during transit.
6.6 - Without prejudice to the generality of the foregoing the Customer is responsible for all public liability arising out or in connection with the use of the items supplied or manufactured by the Company and it is the Customer’s obligation to effect the appropriate insurance to indemnify the Company in connection therewith.
7.0 – Defaults and Consequences of Default
7.1- Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
7.2 - In the event the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Company.
7.3 - If the Customer defaults in payment of any invoice when due, the client shall indemnify the Company from and against all costs and disbursements incurred by the Contractor in pursuing the debt, including legal costs on a solicitor and own client basis and the Company’s collection agency.
7.4 - If any scenery or goods are supplied by the Company to the Customer on hire then the terms and conditions herein contained shall apply to such hire insofar as the same are consistent therewith. Without limitation to other provisions contained herein if any hired articles are not returned to the Company prior to the date specified for their return
then the Customer shall pay a late return fee equivalent to the hire charge in addition to the rental rate agreed up until such goods are returned. If any goods hired are not returned within twenty-one (21) days after the date due to be returned, then at the election of the Company at any time after such twenty-one (21) day period the Company shall
be entitled to deem such goods irrecoverable whereupon the Customer shall be liable for the entire cost and/or replacement value (whichever shall be the greater) of the said articles in addition to any accrued hire charges and late return fee.
7.5 - The Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company show, wheater or not due for payment, become immediately payable if:
(a) - any monies payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due.
(b) - the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enter an arrangement with creditors, or makes an assignment for the benefit of its creditors.
7.6 - The Company reserves the right to close any trading account for any reason by notice to the Customer. If a trading account is closed any balance (including interest) outstanding must be discharged within 21 days.
7.7 - Without prejudice to any other rights the Company may have against the Customer the Company shall have the right to terminate this Agreement or defer delivery of goods ordered and/or billed in the event of:
(a) - the Customer’s account with the Company being overdue for payment,
(b) - if the Customer be in breach of any of its obligations to the Company,
(c) - should the Customer enter any composition or arrangement with or for the benefit of its creditors or have a receiving order made against it (if a corporate body) or go into liquidation either voluntarily or compulsorily (except for the purpose of reorganization or reconstruction) or
(d) - should the Customer have a Receiver appointed of its assets or undertaking or part thereof.
8.0 – Company’s Ownership, Rights and Obligations
8.1 - The Company shall be entitled to sub-contract any service or order that the Company agrees to perform for the Customer.
8.2 - All specifications patterns drawings photographs samples and information provided by the Company to the Customer shall remain the exclusive property of the Company and shall not be disclosed to any third party without the Company’s written consent.
8.3 - All moulds, tools, plant or other equipment provided by the Company to the Customer shall remain the exclusive property of the Company and the Customer shall not use the Company’s property other than in accordance with this Agreement.
8.4 - Where the Company accepts into its possession or custody whether pursuant to any agreement any other materials goods artwork or legal property of any description (hereinafter referred to as “property”) and or where the Company gives possession or custody of such property or any part thereof to an employee agent or sub-contractor
of the Company and where such property or any part thereof is lost stolen damaged or destroyed, the liability for such loss theft damage or destruction whether the same be accidental or be caused or contributed to by the negligent breach of contract or breach of duty by the Company, their servants, agents or sub-contractors shall be limited to the
payment by the Company of the replacement cost to the Company of such property or $200.00 whichever sum be the smaller unless the Company prior to acceptance shall have agreed in writing that a sum be payable in the event of any such loss theft damage or destruction.