1. In these terms: contract means any contract for the supply of service and/or goods from us to you; notice means written notice by post, facsimile or email; quote means any written quote, quote clarification letter or written offer from us to you; we or us means ATSYS Pty Ltd as Trustee for ATSYS Business Trust (ABN 26 040 813 665); and work means our provision of the services including the installing, manufacturing and assembly of goods.
2. These terms:
2.1. apply to each contract;
2.2. together with a quote (if any) are the sole terms of each contract;
2.3. do not apply to a contract to the extent they are inconsistent with an applicable quote;
2.4. prevail over any terms put out by you, unless we agree in writing.
3. We may change these terms without notice to you before we accept your order.
4. None of our employees, agents or contractors may vary or add to these terms without the prior written authority of our Managing Director.
5. Except as required by the mandatory operation of law all implied terms and conditions are excluded.
Services and Goods
6. We may alter the range of services or goods we offer without notice to you.
7. If we agree to supply goods which subsequently are not readily available we may use substitute goods of comparable functionality and quality.
8. We do not undertake that spare parts will be available for the repair of goods.
9. Unless a quote otherwise specifies, goods are offered ex-inventory and are subject to our prior sale to other buyers.
10. An order you give us is subject to our acceptance and we may decline an order.
11. We reserve the right to supply an order in instalments.
12. You may not cancel an order, or delay delivery, once we accept your order unless we agree in writing.
13. Quotes are valid for 30 days from their date unless withdrawn or varied by us by notice prior to our receipt of your notice of acceptance.
14. If a quote is prepared on incomplete, misleading or incorrect information provided by you then on our request you must pay us an additional amount equal to the difference between the quoted price and what we would have quoted had the information supplied been accurate and complete.
Prices and Invoicing
15. Total prices quoted are exclusive of GST unless otherwise stated.
16. Unless a quote otherwise specifies:
16.1. we will for the duration of the work supply you with monthly invoices; and
16.2. all work will be done during our normal working hours which are 8am to 5pm from Monday to Friday excluding days which are public holidays in either South Australia or the place the work is being performed.
17. If we have provided a quote our invoices will be calculated in accordance with the quote. For work performed or goods supplied without a quote, invoices will be calculated by applying our then current Rates Schedule. Unless otherwise agreed in writing, where we agree to a variation to quoted work (including the time of performance or completion date) and/or goods, the quoted amount will be adjusted by applying our then current Rates Schedule to such variations. Where you request that we delay the performance of any work (without giving what we consider to be reasonable written notice) you must pay us an amount equal to that which we determine (acting reasonably) we suffer because we have committed our resources (including employees) to such work.
18. Invoices calculated on our Rates Schedule will include:
18.1. higher rates for work we agree to do outside of our normal working hours and for urgent same day call outs; and
18.2. fees for our vehicle costs, travel time and other costs (including air travel and accommodation and related expenses).
19. We may alter our Rates Schedule without notice to you. We will send you a copy of our current Rates Schedule if you ask.
20. An invoice is payable by you alone and under no circumstances may you withhold payment on the basis you are awaiting payment from any third party or request we seek payment directly from any third party.
21. If you pay an invoice by credit card you must also pay us a credit card surcharge. The credit card surcharge will be an amount equal to the total costs we incur from third parties because you pay us by credit card.
22. Unless a quote otherwise specifies you must pay us a deposit equal to 20% of the price quoted plus GST prior to us commencing the work.
23. Unless a quote otherwise specifies, you must pay each invoice within the time stated in the invoice. If payment is overdue, we may charge you interest at Westpac's indicator rate plus 2% from the date of the default until we receive payment in full. We may apportion any part payments you make against any outstanding principal or interest as we may decide. We may also apportion any payments you make under one contract to amounts due under another contract.
24. If payment is overdue under any contract we may in respect of any contract cancel or suspend the delivery of goods yet to be delivered to you or withhold the provision of our services under any contract. You must still pay us for goods or services already delivered under any such contracts.
25. You may not deduct from the price any set off, counterclaim or other sum unless we agree in writing.
Performance and Delivery
26. Any milestones agreed for the completion of all or any part of the work are estimates only and we will not be in breach of contract or liable to you for any loss or damage incurred as a result of our failure to meet such milestones.
27. Delivery times for goods are estimates only and we do not guarantee a particular delivery date or time.
28. We may deliver goods by instalment, but if we fail to do so by a date specified, you are not entitled to rescind the contract.
29. Unless a quote otherwise specifies, we will make goods available to you from our premises or, at your request and expense, we will cause the goods to be delivered to your premises. If you do not specify a method of delivery then we may decide the method but all carriers will be your agents only.
30. Where goods are:
30.1. consigned by us to you, the goods are deemed to be delivered to you when placed on the transport vehicle; or
30.2. transported by us to a site designated by you, the goods are deemed to be delivered to you when they are unloaded from our vehicle.
31. A claim for shortages in delivery must be in writing and received by us within 14 days of delivery.
Acceptance and Returns
32. You are deemed to have accepted the goods 48 hours after they are delivered to you unless you give us notice that you do not accept the goods and you have the right to do so. Where you properly refuse to accept goods you must at your cost return the goods to us.
33. If the goods are defective, you may return them to us within the warranty period applicable to those goods. We will have repaired or replaced defective goods returned within the applicable warranty period.
34. We may accept the return of non-defective goods only at our complete discretion and provided that you provide us with a prior written request and pay the cost of delivery and return of the goods to us in original condition within 5 days of initial receipt. We reserve the right to impose a handling charge in such cases.
Title and Risk
35. The legal and equitable title to the goods will only be transferred to you when we have received full payment for the goods and services provided under the contract.
36. Until you make full payment you are to keep the goods in their original condition for us in your capacity as trustee. If required you must store the goods in such a way that they can be identified as our goods.
37. We may enter your premises to take possession of goods where payment to us is overdue.
38. If we take possession of the goods and re-sell the goods we must pay you such amount (if any) received by us exceeding the amount owed by you under the contract plus our costs in relation to the sale.
39. Despite the above, you may sell the goods to a third party in the normal course of your business provided that:
39.1. where you are paid by that third party, you hold the whole of the proceeds of sale on trust for us; and
39.2. where you are not paid by that third party, you will at our option assign your claim against that third party to us on notice from us. You will pay the stamp duty on any such assignment. For the purpose of perfecting any such assignment you irrevocably appoint us as your agent.
40. For the purposes of Clause 39, you hold the book debt arising on the sale of goods, or on payment, the proceeds of sale upon trust for us (but only to the extent of the monies and any outstanding interest owing to us in respect the contract). We will have first right to payment of our claim from the book debt in priority to any other creditors. The balance of the book debt or proceeds belong to you. If you make new goods from our goods using other goods or materials, or if our goods in any way become part of any other goods, we own these new goods until you pay us in full. The ownership of such new goods, (whether finished or not) are transferred to us when our goods are converted into new goods, or become part of other goods.
41. Risk in the goods passes from us to you on delivery.
Software Licence and Intellectual Property
42. We own all intellectual property rights, including but not limited to copyright, in our designs, software and all our documents (including plans, illustrations, drawings and specifications) provided to you for the purposes of the contract. Such materials may not be used without our written consent for any purpose other than that for which they are expressly provided. You may not use, reproduce or communicate the contents of such material to any third party without our prior written consent.
43. Subject to Clause 62 and to receipt of payment in full of all amounts due under a contract within the time required, we grant you a non-exclusive and non-transferable licence to use the designs, software and documents in accordance with the scope of work. Software provided may have an activation or time out code which such code we will provide to you on receipt of payment in full of all amounts due under a contract within the time required. At any time prior to such time we may add an activation or time out function to the software and you must assist us in doing the same.
44. Subject to Clause 45 and to any rights you have under the Copyright Act which we cannot exclude you must not copy, edit, adapt, decompile or reverse engineer the software.
45. At your risk, you may make minor edits to the software to conform and improve functionality. You assign all of your rights in any such edits to us (including copyright) and agree at our cost to do anything required to effect such assignment. We grant you a non-exclusive and nontransferable licence to use such edits.
46. You may not sell, sub-licence, let, hire or charge the software nor provide it to a third party.
47. If you breach any of the above conditions, the licence to use the software will automatically terminate and you must return the software and all related materials to us within 7 days.
Instructions and Communications
48. Unless you give us notice to the contrary, we will assume that:
48.1. all of your employees, directors and officers who give us instructions are authorised to do so and that we may act on oral instructions;
48.2. we may communicate with you by e-mail. We cannot guarantee that such electronic communications will be secure or free from infection and we will have no liability for any loss or damage caused by electronic communications.
49. We are not liable to you for any damage or loss suffered by you which results from us following your directions or specifications in making, manufacturing, designing or installing goods or in performing the work.
50. We may publicise that you are our customer (including on the website www.atsys.com.au).
51. At no cost to us you must:
51.1. allow our employees, agents and contractors access to any relevant work site (including the use of amenities, power, water and gas) at all reasonable times to perform the work;
51.2. provide us with all necessary information, plans and drawings to perform the work including access to your employees.
52. You warrant that any relevant work site is safe and complies will all applicable work and safety laws.
53. Unless a quote otherwise specifies, we warrant that:
53.1. our work will be free of defects for a period of 12 months; and
53.2. goods manufactured by us will be free from defects in materials or workmanship for a period of 12 months when used for their intended purpose and in accordance with our specifications or recommendations (if any).
54. Goods supplied by us which have been manufactured by third parties carry the warranty (if any) given by their manufacturer.
55. We warrant that in performing the work we will use due care and skill and use suitably qualified people.
56. If goods or services we supply are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then our liability for breach of a condition or warranty of supply is limited to:
56.1. in the case of goods:
56.1.1. the replacement of the goods or the supply of equivalent goods or the repair of the goods;
56.1.2. the payment of the cost of replacing the goods or of acquiring equivalent goods or of the cost of having the goods repaired;
56.2. in the case of services the supplying of the services again or the payment of the cost of having the services supplied again as we may decide.
57. Unless otherwise agreed in writing we will only perform any warranty work under Clause 56 during our normal business hours.
58. Unless otherwise expressly agreed in writing we will not be liable to you for any amount for any consequential, contingent, special or indirect damages resulting from the loss of business, revenue or profit with respect to claims arising in connection to the contract including any act or omission by us in performing a contract or for a breach of contract or for negligence.
59. You indemnify us against any claim, action, damage, loss, liability or cost (including reasonable legal fees on a solicitor/client basis) which we may incur arising out of any breach by you of the contract or any negligence or wrongful act or omission by you.
60. We may terminate all or any contracts by notice to you if:
60.1. you fail to pay any amount in full within 30 days of the due date under a contract;
60.2. you breach any term or condition in a contract and fail to remedy that breach within 14 days of notice from us or the breach can not be remedied;
60.3. you commit an act of bankruptcy under the Bankruptcy Act;
60.4. you become an externally-administered body corporate (within the meaning of the Corporations Act) or a party takes action to make you an externally-administered body corporate;
60.5. a party seeks to enforce a security against the whole or substantial part of your assets; or
60.6. there is, in our opinion, a material adverse change in your financial position that gives us reasonable grounds for believing that you may be unable to fully and promptly perform your obligations under a contract.
61. Termination does not affect any of our rights or remedies existing before termination or arising from termination.
62. On termination, any licence granted under Clauses 43 and 45 terminates and you must immediately cease using the software and return the software and all related materials to us within 7 days.
63. We will not be liable for delay or failure to perform any of our obligations under a contract to the extent that such delay or failure is caused by a force majeure event.
64. A force majeure event means any circumstance not within our direct or reasonable control including labour disputes, obtaining labour, materials or goods, destruction or damage to our premises or a relevant work site, malfunction, breakdown or damage to our plant or equipment, breach of contract, default or insolvency of any third party, an act of government or governmental authority, terrorism, disruption to the supply of power, gas, water, electronic or telecommunication services, civil disorder, the weather or other natural events.
65. We may terminate a contract thirty business days after the occurrence of a force majeure event if in our opinion we are unable to perform the contract or can only perform the contract at a loss due to the effects of the force majeure event.
Assignments and Amendments
66. You may not assign your rights under a contract with us without our prior written consent.
67. We may use subcontractors to perform any part of the work without notifying you or obtaining your consent.
68. A contract can only be amended by agreement in writing.
69. We can only waive any of our rights under a contract by notice to you.
70. You must pay us all our costs (on a solicitor/client basis) incurred in the recovery of monies owing by you or in otherwise enforcing our rights against you under a contract.
Law and Jurisdiction
71. A contract is governed by South Australian law and any dispute arising in connection with a contract is subject to the exclusive jurisdiction of the courts of South Australia.
ATSYS PTY LTD AS TRUSTEE FOR ATSYS BUSINESS TRUST (ABN 26 040 813 665)