1. Application of these Conditions
1.1 Definitions
Capitalised terms used in these Conditions have the meanings given to them in clause 16.10 unless otherwise stated.
1.2 Creation of Contract
The issue of a Quote by the Supplier and actual or implied acceptance by the Customer (which may be given verbally, in writing, by commencing performance or otherwise) is conclusive evidence that these Conditions apply to the provision of the Goods and the Services.
Upon such acceptance of any Quote, a separate contract is formed comprising the documents referred to in clause 1.3 (Contract).
1.3 Contract documents
The Contract contains the entire agreement between the parties for the supply of the Goods and Services and comprises the Quote, any documents, terms or information attached to or expressly incorporated into the Quote by reference and these Conditions but does not include: any standard terms and conditions of supply provided or referred to by the Customer; any purported variations to these Conditions, unless the Supplier has expressly agreed in writing that those terms prevail over these Conditions; and any additional, contrary or other terms referred to by the Customer.
1.4 Inconsistency
If there is any inconsistency between any of the documents forming part of the Contract, the documents forming the Contract will be interpreted in the descending order of priority of the Quote and then these Conditions (inclusive), followed by any other terms which the Supplier has specifically and expressly agreed in writing are included in the Contract.
To the fullest extent legally possible, all contracts and dealings between the Supplier (and each of its subsidiaries, affiliates, associated companies, related entities, successors and assigns) and any person (Customer) relating to any Goods or Services are subject to the terms set out below unless otherwise expressly agreed in writing. The Customer agrees that any contractual terms that are contained in any document that it submits to the Supplier are of no effect and that these terms will always override such terms, regardless of when the Customer sends documents to the Supplier.
2. Primary obligation
The Supplier agrees to supply the Goods and Services and perform its obligations under the Contract in consideration of the Customer agreeing to pay the Contract Price as and when required by the Contract.
3. Supply of Services
3.1 Standard of Services
The Supplier must ensure the Services are performed in all respects in accordance with the Contract and any directions of the Customer as agreed by the Supplier from time to time, in compliance with all relevant laws and Australian Standards and good industry practice and with all due care and skill by appropriately qualified, experienced and skilled persons. The Supplier is not obliged to comply with any Customer requirement or direction that constitutes a Variation subject to the satisfaction of parties agreement under clause 9.
3.2 Service-related obligations
Without limitation, the Customer must obtain and maintain all approvals, permits, licences and other authorisations which are necessary for the Supplier to perform the Services (Requirements).
Such Requirements may include but are not limited to site access permissions, inductions, site-specific safety requirements, supervision/escort requirements, traffic management requirements and any operational shutdown coordination necessary.
3.3 Warranties about Services
The Customer warrants to the Supplier that the Services do not and will not infringe the Intellectual Property Rights of any person.
4. Supply of Goods
4.1 Sale, delivery and installation
Unless otherwise stated in the Contract, the Supplier must sell the Goods to the Customer free of encumbrances or other security interests, unload the Goods and where the Customer carries out that unloading, it is carried out on behalf of the Customer and is at the Customer’s risk to install the Goods and obtain and maintain all approvals, permits, licences, clearances and other authorisations which are necessary for the supply, installation or use of the Goods.
The Supplier must obtain and maintain such approvals and authorisations, other than those referred to at clause 3.2, which are required for the Supplier to lawfully deliver and install the Goods, to the exclusion of any approvals, permits, licences and authorisations relating to the Customer’s site, vehicles, operations and the ongoing use of the Goods.
4.2 Testing, acceptance and rejection
The Customer may test the Goods as it sees fit after the Goods have been delivered and installed in accordance with the Contract provided it does not unreasonably interfere with the Supplier’s work or delay acceptance.
The Customer must accept the Goods upon being satisfied the Goods comply with the Contract, are fully functional and meet the Customer’s requirements.
By accepting the Goods, the Customer confirms it has received and reviewed all operating instructions and warnings supplied with the Goods (including limitations of any driver assistance/AI features) and has satisfied itself as to suitability for its intended use.
The Customer must notify the Supplier in writing of any alleged non-conformity within five (5) Business Days of delivery and installation. Failing such notice, the Goods and Services are deemed accepted.
4.3 Warranties about Goods
The Supplier warrants that the Goods will, unless otherwise stated in the Contract, be new on delivery to the Customer, conform to any applicable standards, relevant law, and appropriate Australian Standards.
The Customer warrants and undertakes to the Supplier that: it has the benefit of all manufacturer’s warranties in respect of the Goods; and it will not do anything which would void or prejudice any manufacturer’s warranty in respect of the Goods.
To the extent permitted by law, the Supplier’s warranties in respect of the Goods are limited to the benefit of the manufacturer’s warranty (if any) and do not apply to defects or non-conformity arising from misuse, neglect, abnormal operating conditions, modification, installation by third parties, failure to follow instructions, or fair wear and tear.
4.4 Safety / Driver Responsibility / No Autonomous Operation
The Customer acknowledges that the Goods or Services (including any driver assistance, alerting, analytics or functions) are assistive only and do not prevent incidents and may fail to detect hazards, objects, persons, events or risks.
The Goods are not an autonomous driving system and do not replace the need for a competent driver and safe driving practices. The driver remains solely responsible for control and operation of the vehicle at all times.
The Customer must ensure all users/drivers are trained in the correct use and limitations of the Goods, and that all manufacturer warnings/instructions (including any safety warning card/manual supplied with the Goods) are communicated to and complied with by users.
The Customer must not use, market, represent or permit the Goods to be used as a safety guarantee, collision avoidance system, or compliance certification tool unless expressly stated in writing in the Quote.
5. Site access and risk
5.1 Non-exclusive access
The Customer must use reasonable endeavours to ensure that the Supplier is not impeded by the Customer in the supply of the Goods and the performance of the Services while the Customer is exercising a right to access to the Site, and the Customer grants to the Supplier access to the Site of the Customer to undertake the obligations under this Contract.
6. Customer Acknowledgements
6.1 The Customer acknowledges that the Supplier does not control the Customer’s IT systems, networks, storage infrastructure, telematics platforms or third-party integrations.
6.2 Except to the extent directly caused by the Supplier’s proven negligence in installation, to the extent permissible by law, the Supplier is not responsible for:
(a) loss, corruption, deletion or unavailability of data or footage;
(b) unauthorised access to, misuse of or disclosure of data;
(c) cybersecurity incidents affecting the Customer’s systems or third-party systems;
(d) configuration, retention settings, storage capacity or data backup failures.
6.3 To the extent permissible by law, the Customer is solely responsible for: determining data retention periods; implementing appropriate cybersecurity measures; ensuring compliance with privacy, surveillance and workplace laws and managing user access controls and password security.
6.4 The Customer indemnifies and holds harmless the Supplier against any third-party claim arising from the Customer’s use, storage, handling or disclosure of data or footage, to the fullest extent permissible by law.
7. Delays
The Supplier must give the Customer written notice as soon as practicable upon becoming aware that it is not able to or is unlikely to be able to perform its obligations by the time required by the Contract.
The Customer agrees to indemnify the Supplier against any reasonable additional costs and loss where the Supplier is prevented or delayed from performing an obligation to the Customer, to the extent those costs are incurred in circumstances where the Customer fails to perform an obligation due to the Supplier. If the Supplier is prevented or delayed from performing an obligation to the Customer due to a Force Majeure Event, the Supplier is excused from performance of the affected obligation for the duration of the Force Majeure Event, to the extent it is affected, unless by agreement the Supplier agrees to elect to perform its obligation to the Customer under revised terms.
Revised terms must be provided in writing and agreed by the Supplier.
If the Supplier agrees to performance of the affected obligation, it is entitled to reasonable adjustments of the Contract Terms and Contract Price.
If the Force Majeure Event continues for more than 3 months, either party may terminate this Agreement by written notice to the other party, without liability (other than rights accrued prior to termination).
8. Payment
8.1 Invoicing
The Supplier must render tax invoices to the Customer in respect of the Contract Price payable by the Customer at the times stated in the Contract or, if no such times are stated on the last business day of each month in which Goods or Services are supplied.
The Supplier wholly reserves the right to elect alternative payment terms to be stipulated by the invoice.
8.2 Payment
Unless otherwise stated in the Contract, the Customer will pay each invoice within 14 days of the date of the invoice. Without limitation to the Supplier’s other rights or remedies under applicable law or this Contract, if any payment becomes overdue (except for amounts then under reasonable and good faith dispute) default interest shall automatically be due by the Customer at the rate of one point five percent (1.5%) of the outstanding balance per annum of the total amount due by the Customer (or the maximum rate permitted by law, whichever is lower) from the date such payment was due until the date of actual payment, unless Customer proves that it is not at fault. The Customer shall on demand pay to the Supplier all costs (including legal or other professional costs on an indemnity basis) incurred by the Supplier in collecting or attempting to collect any overdue payments. Payment of the default interest shall not release the Customer from compliance with its obligations under this Contract.
The Supplier may suspend further supply and/or Services if any invoice is overdue by more than seven (7) days.
8.3 No Set off
The Customer may not set off any amount that the Customer disputes it owes to the Supplier against any amount which is owing to the Supplier for any reason, including claims for damages.
8.4 Returns and processing fees
The Customer may ask for the Goods that they receive to be returned in accordance with the law. The Supplier may decide to accept this request at its discretion, subject to any legal requirements that mandate the return of the Goods. If the Customer does that for any reason other than that the Goods fail one of the consumer guarantees that apply to the Goods, the Customer agrees to pay a processing fee to the Supplier which is equivalent to 10% of the price of the Goods.
The fee paid for restocking does not include the costs of delivery or pick up of Goods, which must also be paid by the Customer to the Supplier at cost of that service from any third party courier or similar service supplier.
9. Title and risk
Unless otherwise stated in the Contract, title in the Goods will pass to the Customer on payment.
Risk in Goods passes to the Customer when the Goods are delivered into the Customer’s possession.
10. Variations
The Customer may request a variation to the Quote at any time.
If a variation is accepted by the Supplier, any resulting adjustment to the Contract Price and any extension of time to supply must be expressly agreed in writing by the Customer and the Supplier.
11. Defects
(a) If the Customer discovers that all or any part of the Goods or Services are defective or do not conform to the Contract at any time during the Defects Liability Period, excluding defects arising from misuse, neglect, modification, third-party interference, operation outside specifications, or fair wear and tear, the Customer can direct the Supplier to rectify that defect or non‑conformity.
(b) The Supplier must rectify the defect or non‑conformity as soon as practicable in accordance with the Customer’s direction. The Customer acknowledges that it has independently assessed the suitability of the Goods and Services for its intended purpose, site conditions and regulatory environment.
(c) The Supplier does not provide professional engineering, legal regulatory compliance or safety certification advice unless expressly stated in writing in the Quote.
(d) The Supplier makes no representation that the Goods will ensure compliance with any specific law, code, transport regulation or workplace policy beyond the specifications expressly stated in the Contract.
(e) The Customer must ensure that installation locations, vehicle structure, electrical systems and operating conditions are suitable for the Goods.
12. General warranties
Each party to the Contract warrants and represents that it has the capacity, authority and power to enter into and perform its obligations under the Contract and sufficient financial, technical and other resources to perform its obligations under the Contract, it is not insolvent and nothing has occurred which would deem it to be insolvent, unless expressly stated in the Contract, it does not enter into the Contract as agent or as trustee of any trust and if it enters into the Contract in its capacity as trustee, it does so in both its personal capacity and in its capacity as trustee of the trust and is entitled to an unlimited right of indemnity in respect of the assets of the trust for those obligations.
Each of the Supplier and Customer acknowledges that it has entered into the Contract in reliance on the representations, warranties, and covenants made herein. Neither party shall be liable for damages resulting from reliance on information or assurances not expressly set forth in this Contract.
13. Intellectual Property
The parties each retain ownership of their respective Intellectual Property Rights which arose prior to, or independently of, the Contract (Existing IP Rights).
The Supplier grants the Customer a non-exclusive, perpetual, irrevocable, non-transferrable, royalty-free licence (including the right to sub-licence) to deal with its Existing IP Rights to the extent necessary for the Customer to have the full use and benefit of the Goods and Services.
The Supplier otherwise wholly reserves its rights with respect to Existing IP Rights.
14. Liability Cap
14.1 Liability cap
To the fullest extent permissible by law, all implied conditions, statutory rights of action and warranties are excluded. Where permitted by the Competition & Consumer Act 2010 (Cth), liability is limited to replacement of goods, or reprovision of services (as the case may be) or otherwise refund of the Contract Price and any other payments made by the Customer to the Supplier.
The aggregate liability of the Supplier to the Customer under this Contract is limited to the Contract Price, other than in respect of any claims against the Customer in respect of personal injury, death, loss or damage to any property or any other third party Liability, events or circumstances in respect of which insurance proceeds are (or, if the Supplier had complied with the Contract, would have been) available to cover that Liability, and amounts so received will not be included when calculating whether the limit above has been reached; or the wilful misconduct, fraud or gross negligence of the Supplier or its personnel.
With respect to personal injury/death, property damage and third-party claims, liability is limited to the extent of insurance actually recovered and/or that would have been recoverable had the Supplier complied with policy conditions, plus any mandatory non-excludable statutory liability.
14.2 Indemnity
The Customer indemnifies the Supplier against any claim by any person (including employees/contractors/third parties) to the extent caused or contributed to by:
- operation of a vehicle while relying on the Goods contrary to instructions/warnings;
- failure to train users/drivers;
- failure of the customer to use the Goods as directed by the Supplier;
- failure of the Customer to ensure that drivers are trained to properly use the Goods;
- unauthorised modification, settings changes, disabling alerts, poor maintenance, or use outside specifications;
- failure of the Customer to check the Goods or use of them as directed by the Supplier and no later than every 6 months;
- any representation by the Supplier that the system prevents incidents or guarantees safety/compliance.
14.3 Consequential Loss
To the fullest extent permissible by law, neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party in connection with the Contract, other than as a result of its wilful misconduct or fraud.
15. Dispute Resolution
If a Dispute arises between the Supplier and the Customer, the Supplier’s Representative and the Customer’s Representative must meet as soon as reasonably practicable and undertake genuine and good faith negotiations with a view to resolving the Dispute.
If the parties fail to resolve the Dispute within 20 days of the meeting then either party may commence legal proceedings to resolve the Dispute.
Nothing in this prejudices either party’s right to institute proceedings to seek injunctive or urgent declaratory relief in respect of a Dispute or any other matter arising under the Contract.
16. Contracting
16.1 Sub‑contracting
The Supplier may sub‑contract the performance of any matter or thing required by the Contract without the prior written consent of the Customer.
16.2 Assignment
The Supplier party may directly or indirectly transfer, novate or assign the Contract, or any part share or interest in it, without the written approval of the Customer. The Customer must seek written approval from the Supplier before the assignment of this Contract.
16.3 Relationship
Except as expressly stated otherwise in the Contract, the Contract does not create a relationship of employment, trust, agency or partnership between the parties.
17. Miscellaneous
17.1 Notices
Notices required or permitted to be given under the Contract must be sent in writing by ordinary prepaid post to the address of the intended recipient set out on the front of the Quote or Invoice, or as otherwise agreed in writing by the parties. Notices given in accordance with this clause will be deemed given when in the ordinary course of post such notice should have been delivered.
17.2 Goods and Services Tax
The Contract Price (and any other amounts payable for Goods or Services) is fixed, subject to the next paragraph of this clause, and exclusive of any goods and services tax (or other similar tax or impost) payable. The Customer must pay to the Supplier goods and services tax in addition to the Contract Price in respect of the Contract.
The Supplier must be registered and must provide its Australian Business Number and tax invoices promptly in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
17.3 Time not of the essence
Unless expressly stated otherwise, time is not of the essence in respect of the Supplier’s obligations under the Contract.
17.4 No waiver
No party is deemed to have waived any breach of the Contract unless and until it has provided a specific waiver in writing. A waiver only applies to past breaches unless specifically stated otherwise.
17.5 Amendment
No amendment of, nor addition to, the Contract is binding unless it is in writing and executed by the parties to the Contract.
17.6 Severance
If the Contract is a ‘consumer contract’ or ‘small business contract’ (each as defined in the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL)) and a term of that Contract would, but for this clause, be ‘unfair’ (as defined in section 24(1) of the ACL), the Customer may only apply or rely upon that term to the extent that doing so is reasonably necessary to protect the Customer’s legitimate interests.
If, notwithstanding this clause, any provision of the Contract is void, unenforceable or illegal, it must be read down to the extent necessary for it to be valid and enforceable. If it cannot be read down, the provision must be severed but only to the extent necessary for the Contract to be valid and enforceable.
17.7 Governing law
The Contract is governed by the laws of Queensland and the parties irrevocably consent to the non‑exclusive jurisdiction of the courts of that State and courts of appeal from them in respect of any proceedings arising out of or in connection with the Contract.
17.8 Costs
Unless otherwise stated in the Contract, each party bears its own costs of negotiating, preparing and performing its obligations under the Contract.
17.9 Further acts
The parties will do all things and execute all documents required to permit or facilitate the performance of the transactions contemplated by the Contract.
17.10 Defined terms
In these Conditions, unless a contrary intention is apparent:
Business Day means a day other than a Saturday or Sunday or a day that is partly or wholly observed as a public holiday in the Brisbane, Queensland;
Conditions means these Standard Terms and Conditions for the procurement of Goods and Services;
Consequential Loss means any loss of business or production and any loss of actual or anticipated profit or revenue;
Contract means the contract between the Customer and the Supplier for the supply of the relevant Goods and Services referred to in clause 1;
Contract Price means the total amount payable by the Customer for the supply of all Goods and the performance of all Services under the Contract, being either:
(a) the fixed lump sum amount set out in the Contract; or
(b) if the price (or part of it) in the Quote is an estimate, the actual price that is charged to the Customer in the Invoice;
(c) the total fees, charges and disbursements of the Supplier in performing the Contract calculated at the agreed rates or on the agreed basis set out in the Contract;
Delivery Place means the place for delivery of the Goods or Services (as applicable) as stated in the relevant Quote;
Defects Liability Period means the period commencing on the date of delivery and installation and concluding on the date twelve (12) months following that date or as otherwise defined by the Quote;
Dispute means any dispute, controversy, or claim of any kind or type, whether based in contract, tort, statute, regulation, or otherwise, arising out of, relating to, or connected with the Contract, the Goods or the Services, including any dispute concerning the formation, existence, validity, interpretation, performance, breach, or termination of the Contract;
Force Majeure Event means any event or circumstances beyond the reasonable control of the Supplier which prevents or delays the Supplier from performing its obligations including but not limited to acts of God, flood, fire, storm, cyclone, earthquake, other natural disaster, epidemic, pandemic or public health emergency (including any government response to such an event), war, terrorism, riot, civil disturbance, act of a public enemy, strike, lock out, industrial action, failure or utilities or telecommunications, acts or omissions or government.
Goods means: the goods referred to on the front of the Quote and any other goods expressly or impliedly agreed to be supplied to the Customer by the Supplier in connection with the Quote and any other goods supplied to the Customer by the Supplier, to the extent these Conditions apply to the supply of those goods.
Intellectual Property Rights means intellectual property and rights including any copyright, trademarks, patents, designs, circuit layout rights, the right to protect confidential information, know-how and trade secrets and any application or right to apply for registration of any of those rights;
Liability means all liabilities, damages, remedies, losses, penalties, fines, costs, expenses (including legal fees and expenses on a full indemnity basis), demands, claims and proceedings of any nature;
Supplier means the entity supplying a good or service or both which is one of Rear Vision Systems (QLD) Pty Ltd ABN: 47 147 384 790 or Forklift Scales Pty Ltd ABN: 90 645 960 612 and any related body corporate;
Services means: the services referred to on the front of the Quote, any other services expressly or impliedly agreed to be supplied to the Customer by the Supplier in connection with the Quote and any other services supplied to the Customer by the Supplier, to the extent these Conditions apply to the supply of those services.
Site means the places and locations to be made available and any other lands and places made available to the Supplier by the Customer for the purpose of the Supplier performing the Services or for any other purpose under the Contract;
17.11 Interpretation
In the Contract, unless a contrary intention is apparent:
(a) references to natural persons include corporations and vice versa;
(b) a provision of these Conditions must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of these Conditions or the inclusion of the provision in the Contract;
(c) words such as “include” or “including” are not words of limitation;
(d) if a party includes two or more persons, an obligation of those persons is joint and several, a right of those persons is held by each of them separately, and any other reference to that party or term is a reference to each of those persons separately;
(e) where a word or phrase is defined or given meaning, any other part of speech or grammatical form has a corresponding meaning; and
(f) the plural includes the singular and vice versa
