1 Definitions
1.1 Agreement means a valid Quote and these terms and conditions.
1.2 Deliverables means the deliverables set out in the Quote.
1.3 Fee means the fees or charges set out in the Quote.
1.4 Force Majeure means a circumstance beyond the reasonable control of a Party which results in that Party being unable to observe or perform on time an obligation under this Agreement.
1.5 Intellectual Property means all present and future registered and unregistered copyright, trademarks, designs and patents, together with all other proprietary rights resulting from intellectual activity in the electronic, industrial, scientific, literary or artistic fields.
1.6 Intellectual Property Rights means any rights in Intellectual Property.
1.7 Item means an item in the Quote.
1.8 Quote means a document issued by the company describing amongst other things the Deliverables and the Fees.
1.9 Specification means the description for the Deliverables set out in the Quote or otherwise agreed in writing.
1.10 Warranty Period means 1 year from the date of delivery of the Deliverables.
1.11 We/Us/Our means Artefact Industries Pty Ltd. 1.12 You means the person named and described in the Quote.
2 Ordering
Submitting an order to Us in writing, You agree to be bound the relevant Quote and these Terms and Conditions without change.
3 About Deliverables
3.1 You acknowledge and agree that:
(a) We design and manufacture light fittings. We are not lighting engineers. You should obtain professional advice in relation to the use, installation or application of any Deliverable.
(b) Deliverables may comprise natural materials which may differ in shape, size and colour and may not be identical to samples. Natural variation within Deliverables will not be a breach of this Agreement.
(c) Specifications are intended to be a high level description only and may not contain a full and enhanced technical description of any Deliverable. We may exercise creative discretion in respect of a Deliverable that is consistent with the Specification. If any part described in a Specification is unavailable for any reason, We reserve the right, in our discretion, to substitute that part with an equivalent part.
4 Supply of Deliverables
4.1 We will supply the Deliverables in accordance with the Specification and these terms and conditions.
4.2 For the avoidance of doubt:
(a) We are not required to commence work until You have:
(i) Supplied all things described in the Specification to be supplied by You;
and
(ii) Paid all required Fees.
(b) Any timetable or estimate for the delivery of the Deliverables is an estimate only. Whilst We will use Our best endeavours to meet the estimate We will not be liable for any failure to meet any estimate.
4.3 Unless otherwise agreed in writing, Deliverables will be delivered ex Our premises. You are responsible for all shipping and freight costs. We reserve the right to charge a holding fee of equal to 2% of the Fee per week (or part thereof) if Deliverables are not dispatched within 1 week of the Deliverables being completed.
5 Variations
5.1 Changes or variations to any Deliverable (including cancellations) may be made by submitting a written request to Us describing the nature of the change requested (the “Change Request”). You must provide all information and assistance as is reasonably required to enable Us to consider and deal with the request.
5.2 We will respond to a change request as follows:
(a) If We can agree to the Change Requests;
(b) The amounts (if any) proposed to be charged by Us for implementing the Change Request;
(c) Any changes to this Agreement which may be required to implement the Change Request; and
(d) Any impact which implementation of the Change Request is expected to have on Our ability to supply the Deliverable in accordance with any timetable or estimate for delivery.
5.3 We will have no obligation to proceed with a Change Request until both of us have agreed in writing.
6 Warranty
6.1 Upon delivery You must inspect the Deliverables to determine:
(a) short supply; or
(b) if the Deliverables do not conform with the Specification, and immediately notify us. If you fail to notify us within 7 days You will be deemed to have accepted the Deliverables.
6.2 We warrant that Our Deliverables will be free from defects in manufacturing and material under normal use for a period of 12 months after delivery provided that the Deliverables are used within the specified voltage supply and installed by qualified electrician.
6.3 Our warranty does not cover the following:
(a) Deliverables lost or damaged in transit, or rendered unusable due to any delay;
(b) Failure to conform to the Specification if caused by You providing insufficient or incorrect information;
(c) Globes and other light sources;
(d) Accessories or parts which are not manufactured by Us, and in that case You will only have the benefit of the warranty (if any) of the manufacturer of such parts or accessories;
(e) Defect, which in Our opinion, are caused by improper handling, installation or by fair wear and tear;
(f) Any costs of rectification, de-installation or re-installation or return.
6.4 Subject to Clause 12, Our liability and obligation to You is limited (at Our option) to repair or replace Deliverables without charge upon return of the Deliverables and will cease upon expiry of the Warranty Period.
6.5 You acknowledge and agree that if, after due investigation by Us of an alleged defect in relation to any Deliverables, the investigation reveals that no such defect in fact exists, or is not covered by this Clause 6 or that the defect is otherwise unrelated to Us:
We will have no obligation or liability in relation to the same; and You will be liable to pay upon invoice, on a time and materials basis (at Our then standard rates), Our costs in respect of such investigation.
6.6 Unless otherwise agreed in writing, We offer no warranty in respect of Third Party Products and Services and accept no responsibility for a failure by the Third Party Products and Services to confirm to relevant product specifications or warranties or for any failure of a Deliverable as a consequence of a defect in the Third Party Products and Services or any incompatibility between the Third Party Products and Services or any incompatibility between the Third Party Products and Service and any Deliverable. Third Party Software and Services means any product or service not supplied by Us, including but not limited to lighting management software and drivers, power supply and structural elements to support Deliverables.
7 Risk and Title
7.1 Unless otherwise agreed, risk in and to the Deliverable passes to You once the Deliverable is delivered to You or Your agent.
7.2 You acknowledge and agree that:
(a) Deliverables delivered to You remain Our sole and absolute property as legal and equitable owner until all money due to Us from You have been paid in full.
(b) We may enter Your premises (or that of your agent or related bodies corporate) without liability, including for tresspass, or for any resulting damage and retake possession of the Deliverables; and
(c) subject to, and in accordance with, the Personal Property Securities Act 2009 (Cth), to keep or resell any repossessed Deliverables.
7.3 If You resell the Deliverables, or products manufactured using the Deliverables, You must hold such part of the proceeds of any such sale (without set off or deduction) as represents the invoice price of the Deliverables sold or used in the manufacture of the Deliverables sold in a separate identifiable account as Our beneficial property and shall pay such amount to Us upon request.
8 Personal Property Securities Act 2009 (Cth) (PPSA)
8.1 You acknowledge and agree that:
(a) The interest of Artefact in the Deliverables and all proceeds from the sale of the Deliverables by You to a third party is a security interest whether the Deliverable:
i. was previously supplied by Artefact to You;
ii. is to be supplied in the future by Artefact to You;
(b) We may register a security interest on the Personal Property Securities Register and You will provide Us with all assistance reasonably required to enable registration;
(c) Until such time as title in the Deliverables has passed to You,You will not to in any way assign, charge, lease or otherwise deal with the Deliverables in such a manner as to create, a security interest over, the Deliverables in Your favour or any third party.
We agree that this clause will not prohibit You from selling the Deliverables in the ordinary course of business.
8.2 To the extent permitted by the PPSA, You waive Your rights to receive any notice under the PPSA (including notice of verification statement).
8.3 Unless the Deliverables are used predominantly for personal, domestic or household purposes, You agree that each of the following requirements or rights under the PPSA do not apply to the enforcement of Our security interest in the Deliverables or of this Agreement:
(a) any requirement upon Us to give You a notice of removal of accession;
(b) any requirement upon Us to give You a notice of the Our proposed disposal of the Deliverables;
(c) any requirement upon Us to include in a statement of account, after disposal of the Deliverables, the details of any amounts paid to other secured parties;
(d) any requirement upon Us to give You a statement of account if we do not dispose of the Deliverables;
(e) any right You have to redeem the Deliverables before We exercise a right of disposal;
and
(f) any right You have to reinstate this Agreement before We exercise a right of disposal of the Deliverables.
8.4 Expressions defined in the PPSA have the same meaning when used in this Agreement.
9 Fees and Payment
9.1 Prices quoted in any quote or order apply to that quotation or order only and do not apply in any other circumstances. All prices include the Goods and Services Tax (GST)
9.2 All fees are payable as set out in a quote.
9.3 If You fail to pay any fee by the required time We may require that You pay:
(a) Interest to Us, on the daily amount outstanding, at the rate applicable under the Penalty Interest Rates Act, 1983 until all monies due are paid;
and
(b) Any expense (including legal fees) incurred by Us in recovering the outstanding Fees.
10 Intellectual Property
All Intellectual Property Rights in Deliverables designed and/or manufactured by Us (including any drawings or Specification) are owned or licensed by Us. You must not reproduce or permit any third party to reproduce any Deliverable or otherwise infringe our Intellectual Property Rights.
11 Implied Terms
Other than as set out in this Agreement, and to the extent permitted by law, all implied and express warranties in respect of the Services are hereby excluded.
12 Our Liability to You
12.1 We will only be liable to You:
(a) where the law implies a term into this Agreement which cannot be excluded and Artefact Industries Pty Ltd breaches that term. However, where the breach relates to goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and where it is fair and reasonable to do so Our liability is limited, at Our option, to replacing, repairing or re supplying the relevant goods or re-supplying the relevant services; and/or
(b) if the claim arises from or in connection with any deliberate breach of this Agreement or fraud by Us but subject always to Clause 12.3.
12.2 Subject to Clause 12.1(a), and except to the extent that liability cannot be excluded or otherwise provided in this Agreement, We will not be liable to You for claims arising out of or in connection with this Agreement whether arising in tort (including negligence), indemnity, strict liability, breach of warranty or statute.
12.3 In no event will a Party be liable to the other Party for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage.
12.4 For the purposes of this Clause 12, We/ Us/Our means Artefact Industries Pty Ltd , its officers, employees, contractors and agents, whether individually or collectively.
12.5 This Clause 12 will survive the expiration or termination of this Agreement.
13 Force Majeure
12.1 Neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
13.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended ( other than any obligation to pay any Fees due).
13.3 If the delay or failure by a Party to perform its obligations due to Force Majeure exceeds 60 days, either Party may immediately terminate the Agreement on providing written notice in writing to the other Party.
14 Credit
14.1 You have no entitlement credit unless, in Our sole discretion, We approve a credit facility and a credit limit in writing.
14.2 If We approve credit, balance payments for all Deliverables is due within 30 days from the date of invoice unless otherwise agreed in writing.
14.3 We reserve the right, in our absolute discretion (with or without written notice) to:
(a) require a director’s guarantee (or similar security) to secure Your obligations under this Agreement;
(b) increase or reduce a credit limit;
(c) refuse to supply Deliverables on credit notwithstanding credit may have previously been offered or provided.
14.4 If You fail to comply with this Agreement, or fail to pay any fee by the required time or become insolvent or bankrupt, all amounts owning to Us will become due and payable immediately (with or without written notice).
15 Miscellaneous
15.1 Precedence
In the event of any conflict between a Quote and these terms and conditions these terms and condition will prevail to the extent of the inconsistency.
15.2 Severance
A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms this Agreement continue in force.
15.3 Sub-contract
We may sub-contract the performance of its obligations under this Agreement to third parties. We will remain responsible for the performance of its obligations under this Agreement despite sub-contracting the performance of any part of it.
15.4 Waiver
A Party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the Party giving the waiver.
15.5 Governing law
This Agreement is governed by the laws of Victoria, Australia and each part submits to the exclusive jurisdiction of the courts in that state.