1.         Application of these Conditions

1.1       Definitions

Capitalised terms used in these Conditions have the meanings given to them in clause  16.11 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.

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, the Customer’s requirements and any directions of the Customer 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.

3.2       Service-related obligations

The Customer must obtain and maintain all approvals, permits, licences and other authorisations which are necessary for the Services.

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 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.

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

The Customer must accept the Goods upon being satisfied the Goods comply with the Contract, are fully functional and meet the Customer’s requirements.

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.

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.         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.

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.

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).

7.         Payment

7.1       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.

7.2       Payment

Unless otherwise stated in the Contract, the Customer will pay each validly rendered invoice within 14 days of the date of the invoice.

7.3       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.         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.

9.         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.

10.      Defects

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, the Customer can direct the Supplier to rectify that defect or non‑conformity. The Supplier must rectify the defect or non‑conformity as soon as practicable in accordance with the Customer’s direction.

11.      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.

12.      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 Principal to have the full use and benefit of the Goods and Services.

13.      Liability Cap

13.1    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 010 (Cth), liability is limited to replacement of goods, or reprovision of services 9as the case may be) or otherwie 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 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.

13.2    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.

14.      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.

15.      Contracting

15.1    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.

15.2    Assignment

Neither party may directly or indirectly transfer or assign the Contract, or any part share or interest in it, without the prior written approval of the other party.

15.3    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.

16.      Miscellaneous

16.1    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. Notices given in accordance with this clause will be deemed given when in the ordinary course of post such notice should have been delivered.

16.2    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).

16.3    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.

16.4    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.

16.5    Amendment

No amendment of, nor addition to, the Contract is binding unless it is in writing and executed by the parties to the Contract.

16.6    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.

16.7    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.

16.8    Costs

Unless otherwise stated in the Contract, each party bears its own costs of negotiating, preparing and performing its obligations under the Contract.

16.9    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.

16.10  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;

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 service.

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;

16.11  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 vers.