Terms and Conditions

Definitions and interpretation

1. In these terms and conditions, unless the context otherwise requires:
   Agreement means these terms and conditions together with any additional terms and conditions included by the Supplier in a Quotation, any standard order form or the Sales Invoice.
   Artwork means any item stored, handled, installed or transported using the Products.
   Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State Fair Trading legislation
   Customer means the person who purchases Products from the Supplier and who is named in the relevant Order, Sales Invoice or Quotation.
   Consumer has the meaning given to that term in the Australian Consumer Law.
   Delivery means the delivery of the Products at the Location.
   Excluded Loss means loss of or damage of any kind and howsoever caused to Artwork and any indirect or consequential losses, including:
   1. in the case of loss or damage resulting from a breach of contract (including any contractual duty of care) – loss of revenue; loss of profit; loss or denial of opportunity; loss of access to markets; loss of goodwill; loss of business reputation; loss arising from late delivery or failure to deliver Products; loss arising from any business interruption; increased overhead costs and any indirect, remote or unforeseeable loss occasioned by that breach, whether or not in the reasonable contemplation of the Customer and the Supplier at the time of the Quotation, Sales Invoice or any delivery of Products as being a probable result of the relevant breach; and
   2. in the case of loss or damage arising from any tort (including negligence) which does not also constitute a breach of contract - indirect, remote or unforeseeable loss and, in the case of pure economic loss, loss not flowing directly from the commission of the tort.
   GST means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.
   GST Law has the meaning given to that term in A New Tax System (Products and Services) Act 1999 (Cth), or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a Products and services tax in Australia and any regulation made under that Act.
   Location means the place for delivery as agreed between the Customer and the Supplier.
   Order means any order for Products placed by the Customer with the Supplier in the form required by the Supplier from time to time, including, where applicable, by way of acceptance by the Customer of a Quotation.
   Product Guidelines means the Supplier’s written guidelines or instructions for the use and handling of the Products, as issued by the Supplier to the Customer from time to time.
   Products means the products to be supplied by the Supplier to the Customer as set out in the Order.
   Quotation means any quotation submitted by the Supplier to the Customer.
   Sales Invoice means the sales invoice issued by the Supplier to the Customer for Products.
   Specifications means the technical specifications and materials selected for the Products, as updated from time to time by the Supplier.
   Supplier means Artist Engineering Pty Ltd ACN 641 431 825.
   Tax Invoice has the meaning given to that term by the GST Law.
   Taxable Supply has the meaning given to that term by the GST Law.
   Warranty Period means the period commencing from the date of Delivery until the date that is 2 years after the date of Delivery.
2. Any special conditions specified by the Supplier in a standard order form, Quotation or Sales Invoice shall, to the extent they are inconsistent with these terms and conditions, take precedence over these terms and conditions and words importing the singular shall include the plural (and vice versa).

Governing terms and conditions

3. These are the only terms and conditions which are binding upon the Supplier except for those otherwise agreed in writing by the Supplier or which are imposed by law and cannot be excluded. Any Order will be deemed as acceptance by the Customer of these terms and conditions, as varied from time to time in accordance with clause 45 below, despite any provisions to the contrary in documents or communications issued or used by the Customer.

Quotations and Orders

4. A Quotation is not to be construed as an obligation to sell Products but merely an invitation to treat and no contractual relationship shall arise from it until an Order has been accepted by the Supplier.
5. Supply and delivery of Products will only be made against an Order. Placement of an Order by the Customer constitutes an offer to form an agreement with the Supplier, which agreement is formed upon acceptance by the Supplier of an Order.
6. The Supplier may accept the Order by: (i) communicating acceptance of the Order in writing or verbally; (ii) providing a Sales Invoice for the Products; or (iii) by supplying the Products. The Supplier will endeavour to communicate acceptance (or otherwise) of an Order to the Customer within 7 business days of the Order. The Supplier is not under an obligation to accept an Order.
7. The Supplier has no responsibility in respect of any incorrectly placed Order.
8. In the event of a dispute, the Supplier’s internal records will be conclusive evidence of the details of the Order, when the Agreement was formed and the Products supplied by the Supplier.

Delivery

9. Upon acceptance of an Order by the Supplier, the Supplier will deliver to the Customer the applicable Products to the Location in accordance with the Supplier’s standard delivery procedures. Unless otherwise agreed in writing, Delivery will not take place until payment of the entire amount set out in the Sales Invoice has been received by the Supplier in full and in cleared funds.
10. The Customer agrees that risk in the Products shall pass to the Customer at the time of Delivery. Subject to the Supplier’s express warranty as provided for in this Agreement, the Supplier accepts no liability or responsibility for the Products once risk has passed to the Customer.
11. Unless otherwise agreed by the parties, the Supplier will arrange shipping of the Products to the Location but the Customer must make all other arrangements necessary to enable Delivery.
12. Any period or date for delivery of Products as advised by the Supplier is an estimate only and is not a contractual commitment. While the Supplier will use reasonable endeavours to deliver the Products as soon as possible after acceptance of an Order, it will not be liable for any loss (including consequential loss) or damage suffered by the Customer or any other person arising out of failure to meet an estimated delivery date. The Customer’s receipt of Products delivered shall constitute a waiver of any claim for delay.
13. If re-delivery of the Products is required at an alternative time to the scheduled delivery date or at an alternative location through no fault of the Supplier, an additional re-delivery fee may be charged by the Supplier to the Customer.
14. The Customer agrees that:
    1. the Supplier shall be entitled to make part deliveries of any Order;
    2. failure to make a delivery of the total Order shall not invalidate the Order as regards other deliveries;
    3. if the Supplier makes part delivery, the Supplier may issue a Sales Invoice for the Products delivered on each separate delivery; and
    4. the Supplier shall have no obligation to make any further delivery until such time as any monies outstanding by the Customer to the Supplier for any previous deliveries have been paid for in full and in cleared funds.
15. Other than as expressly provided for in this Agreement, the Supplier shall have no liability whatsoever for any direct, indirect or consequential damage or loss arising from non-delivery or any delays in delivery of Products.
16. The Supplier may, from time to time, subcontract any service relating to Delivery to a third party to ensure that the Products are delivered to the Customer at the Location.

Condition upon Delivery

17. The Customer must note any concerns with the condition of the Products on Delivery to the Customer within 48 hours of Delivery. If the Customer does not note any concerns with the condition of the Products on Delivery, the relevant Products will be deemed to have been accepted by the Customer.

Pricing and payment

18. The price for the Products shall be the price current at the date of delivery of the Products and specified by the Supplier in the relevant Sales Invoice.
19. Prices contained in any Quotation for Products are estimates only and are made on the basis of costs existing as at the date of the Quotation. Any increase incurred by the Supplier in any such cost after the date of the Quotation and before delivery of the Products will be added to the price contained in that Quotation.
20. All price-lists and Quotations provided by the Supplier from time to time are based on the prices and availability at that time and the Customer acknowledges and agrees that, unless otherwise agreed in writing with the Supplier, these prices are subject to variation and that the final prices for Products stipulated in Sale Invoices are binding.
21. The Customer must pay to the Supplier all amounts invoiced no later than the due date for payment shown on that Sales Invoice.
22. Unless otherwise provided in the Sales Invoice, the Customer must pay the amount(s) specified in the Sales Invoice in full and in cleared funds by the due date(s) specified in the Sales Invoice or before Delivery (whichever is earlier).
23. Delivery under the Agreement will be subject to full payment of the amount set out in the Sales Invoice by the Customer.
24. The Customer will be responsible for all costs and expenses in relation to Delivery, including shipping and freight costs, destination taxes, duties and other associated fees unless otherwise stated in the Sales Invoice.
25. All payments made under this Agreement are non-refundable.
26. Late payment of any amount under this Agreement will result in interest being payable by the Customer on the amount outstanding, calculated on a daily basis from the date due until payment of such amount in full. Interest will be calculated at the rate of 8% plus the official cash rate set by the Reserve Bank of Australia per annum.

Currency

27. All amounts are expressed, and will be invoiced to the Customer, in United States Dollars, unless otherwise notified by the Supplier or specified on the Sales Invoice.

GST

28. The parties agree that:
    1. if any transaction contemplated by this Agreement constitutes a Taxable Supply, the party obliged to pay for the Taxable Supply must pay an additional amount equal to the GST payable (if any) on or for the Taxable Supply;
    2. the person providing the Taxable Supply will provide the party receiving the Taxable Supply with a valid tax invoice for GST purposes at the time of request for payment;
    3. payment of the GST will be made at the same time as the payment for the Taxable Supply is required to be made; and
    4. any reference to a cost or expense in this Agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party can claim an Input Tax Credit.

Intellectual property

29. All rights, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all the Products and the Product Guidelines (including their packaging and related documentation) and all intellectual property rights subsisting in them, whether or not supplied by or on behalf of the Supplier to the Customer, shall remain the exclusive property of the Supplier or its related entities, licensors or suppliers. The Customer shall not use, reproduce or impart any information contained therein to any third party.

Force majeure

30. If the performance or observance of any obligations of the Supplier is prevented, restricted or affected by reason of a force majeure event including, without limitation, pandemic, strike, lock out, industrial dispute, raw material shortage, breakdown of plant, transport or equipment, act of government or any other cause beyond the reasonable control the Supplier, the Supplier may, in its absolute discretion give prompt notice of that cause to the Customer. On delivery of that notice the Supplier is excused from such performance or observance to the extent of the relevant prevention, restriction or effect.

Default of customer

31. If this Agreement is not strictly observed by the Customer, the Supplier may in its absolute discretion, refuse to supply Products to the Customer and the Supplier shall not be liable to the Customer for any loss or damage the Customer may sustain as a result of such refusal. The Customer indemnifies the Supplier against, and must pay on demand, all costs incurred by the Supplier in collecting money due and payable by the Customer and otherwise enforcing the Supplier’s rights under this Agreement, including the fees of any agent or lawyer engaged by the Supplier.

Customer’s cancellation

32. Once accepted, an Order can only be cancelled by agreement and then only upon terms which will indemnify the Supplier against any loss.

Supplier’s Warranty

33. Subject to these terms and conditions, the Supplier warrants to the Customer that the Products shall:
    1. comply with the Specifications; and
    2. be free from material defects in design, material and workmanship,
    3. during the Warranty Period, and the Supplier will, at its discretion, repair or replace the Products without charge if the Products do not comply with Specifications and/or a manufacturing defect covered by this warranty arises in respect of the Products (‘Supplier’s Warranty’).
34. A claim under the Supplier’s Warranty will only be accepted if:
    1. the Customer gives notice in writing to the Supplier during the Warranty Period and within a reasonable time of discovery that some or all of the Products do not comply with the Supplier’s Warranty (‘Claim’); and
    2. if requested by the Supplier, the Supplier is given a reasonable opportunity of examining such Products; and
    3. the Claim is accompanied by:
       1. the Customer’s name, address and phone number;
       2. the original sales receipt, or such other documentation acceptable to the Supplier which demonstrates proof of purchase of the Product from the Supplier;
       3. documentation (including but not limited to photographs and video recordings) evidencing that such Products do not comply with the Supplier’s Warranty; and
       4. a written explanation describing the nature of the non-compliance of such Products, including details of the circumstances that led to or caused the non-compliance; and
    4. if requested by the Supplier, the Customer returns such Products to the Supplier’s place of business (or such other address as notified by the Supplier to the Customer) at the Customer’s cost.
35. Subject to any rights that the Customer may have under the Australian Consumer Law, the remedies set out in clause 33 shall be the full extent of the Supplier’s liability to the Customer in the event of the supply of a defective Product that does not comply with the Supplier’s Warranty.
36. The Supplier’s Warranty does not cover:
    1. damage or defects caused by any act of God, any natural occurrence, third party act or omission or any other circumstances beyond both parties’ control;
    2. damage or defects unrelated to the quality of the Products and beyond the Supplier’s control;
    3. damage or defects caused by any failure by the Customer or its agents or sub-contractors to follow the Product Guidelines;
    4. normal ‘wear and tear’ including scratches, scuffs, dents, and marks;
    5. damage or defects caused or contributed to by wilful damage to the Products after Delivery by any person other than the Supplier;
    6. damage caused or contributed to by negligent actions of the Customer or any other person;
    7. any defect which the Supplier, in its absolute discretion, considers trivial or insubstantial; and
    8. the Products differing from their previous Specification as a result of changes made by the Supplier to ensure they comply with applicable statutory or regulatory requirements.
37. Once a Claim has been lodged with the Supplier, the Supplier will assess the Claim and endeavour to respond within 20 business days.

Warranty and liability

38. Other than the Supplier’s Warranty, the Supplier makes no express warranties, including as to quality, condition, fitness or suitability of the Products for any purpose, under this Agreement. To the maximum extent permitted by law, all conditions and warranties that may be implied by law into this Agreement are expressly excluded.
39. The Customer acknowledges and agrees that neither the Supplier nor its agents or sub-contractors shall have liability to the Customer on any account whatsoever, whether in contract, tort (including negligence) breach of statutory duty or otherwise, for any loss of or damage to any Artworks. The Customer acknowledges and agrees that it is the Customer’s responsibility to ensure that any Artworks are suitably insured for any such loss or damage.
40. To the extent permitted by law, all warranties, conditions and guarantees (whether express or implied and whether given by the Supplier, its suppliers or a third party) and any obligation of the Supplier to fix any defect or replace any Products is void in respect of any Products which the Customer tampers with or alters.
41. To the extent permitted by law, and subject to clause 39, the Supplier’s entire liability under this Agreement shall not exceed amounts actually paid by the Customer to the Supplier in respect of the Order that is the subject of a claim against the Supplier. The Supplier’s liability to the Customer for loss or damage of any kind arising out of or in connection with these terms and conditions is reduced to the extent (if any) that the Customer causes or contributes to the loss or damage. This reduction applies whether the Supplier’s liability is in contract, tort (including negligence), under any statute or otherwise.
42. The Supplier shall not in any circumstances be liable to the Customer under or in connection with this Agreement, or in negligence or any other tort or otherwise howsoever, as a result of any act or omission in the course of or in connection with the performance of this Agreement, for or in respect of any Excluded Loss.

Australian Consumer Law

43. Nothing in this Agreement is intended to remove the Consumer’s rights under the Australian Consumer Law, including to statutory guarantees that may apply to Products supplied by the Supplier. If the Supplier is entitled to limit the remedies available to the Customer for breach of such guarantees, it expressly limits its liability as set out in clause 44 to the maximum extent permitted by law.
44. If the Customer is a Consumer and any of the Products supplied by the Supplier are not Products of a kind ordinarily acquired for personal, domestic or household use or consumption, the Customer agrees that the Supplier’s liability for a failure to comply with a guarantee under the Australian Consumer Law in relation to those Products is limited to, at the option of the Supplier, one or more of the following:
    1. the replacement of the Products or the supply of equivalent Products;
    2. the repair of the Products;
    3. the payment of the cost of replacing the Products or of acquiring equivalent Products; or
    4. the payment of the cost of having the Products repaired.

Variation to terms

45. The Supplier may, at any time and from time to time, alter these terms and conditions. Any variation to these standard terms and conditions will not apply to any contract for a specified term that incorporates a version of these standard terms and conditions released prior to the variation.

General

46. If any term or condition or part of a term or condition is illegal, unenforceable or invalid, that term or condition or part of the term or condition is to be treated as removed from this Agreement, but the rest of the terms and conditions in this Agreement are not affected.
47. The Customer must not set off any amounts due by it to the Supplier under this Agreement against amounts that may be due to it by the Supplier.
48. Failure by the Supplier to enforce any rights under this Agreement does not constitute waiver of any rights or obligations of the Customer unless the Supplier expressly agrees in writing.
49. Time is of the essence in relation to all of the Customer’s obligations.
50. This Agreement shall be governed by the laws of the State of Victoria, Australia and the Customer agrees to submit to the non-exclusive jurisdiction of its courts.