Ausplay Surfacing and Shade Terms and Conditions

Ausplay Surfacing and Shade Terms and Conditions

1    Definitions

1.1 "Ausplay" means Ausplay Surfacing and Shade Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Ausplay Surfacing and Shade Pty Ltd.
1.2 "Client" means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 "Goods" means all Goods or Services supplied by Ausplay to the Client at the Client's request from time to time (where the context so permits the terms 'Goods' or 'Services' shall be interchangeable for the other).
1.4 "Price" means the Price payable for the Goods as agreed between Ausplay and the Client in accordance with clause 4 below.

2    Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Ausplay's consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Ausplay.

3    Change in Control

3.1 The Client shall give Ausplay not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client's details (including but not limited to, changes in the Client's name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Ausplay as a result of the Client's failure to comply with this clause.

4    Price and Payment

4.1 At Ausplay's sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Ausplay to the Client; or
(b) Ausplay's quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 Ausplay reserves the right to change the Price if:
(a) a variation to Ausplay's quotation is requested; or
(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, change of design etc) which are only discovered on commencement of the Services.
4.3 At Ausplay's sole discretion a non-refundable deposit may be required. The deposit amount or percentage of the Price due will be stipulated at the time of the order of the Goods/Services and shall become immediately due and payable.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Ausplay, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Ausplay's payment schedule;
(d) fourteen (14) and/or thirty (30) days following the date of the invoice;
(e) thirty (30) days following the end of the month in which a statement is posted to the Client's address or address for notices; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Ausplay.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Ausplay.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Ausplay an amount equal to any GST Ausplay must pay for any supply by Ausplay under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5    Delivery of Goods

5.1 Delivery ("Delivery") of the Goods is taken to occur at the time that:
(a) the Client or the Client's nominated carrier takes possession of the Goods at Ausplay's address; or
(b) Ausplay (or Ausplay's nominated carrier) delivers the Goods to the Client's nominated address even if the Client is not present at the address.
5.2 At Ausplay's sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 Subject to clause 5.4 it is Ausplay's responsibility to ensure that the Services start as soon as it is reasonably possible.
5.4 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Ausplay claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Ausplay's control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify Ausplay that the site is ready.
5.5 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Ausplay shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.6 Ausplay may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.7 Any time or date given by Ausplay to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Ausplay will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

6    Risk

6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Ausplay is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Ausplay is sufficient evidence of Ausplay's rights to receive the insurance proceeds without the need for any person dealing with Ausplay to make further enquiries.
6.3 If the Client requests Ausplay to leave Goods outside Ausplay's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client's sole risk.
6.4 The Client acknowledges that variations of colour and shade are inherent in fabric dye lots. While every effort will be taken by Ausplay to match colour and shade of the Goods, Ausplay shall not be liable for any loss, damage or costs, howsoever arising resulting from any variation in colour and shading between batches of the Goods or sale samples and the final Goods supplied.
6.5 All drawings, plans and designs supplied by Ausplay are guidelines only, not scale plans or accurate surveys and must not be relied on as such.

7    Access

7.1 The Client shall ensure that Ausplay has clear and free access to the work site at all times to enable them to undertake the Services. Ausplay shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Ausplay.
7.1 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by Ausplay. The Client agrees to indemnify Ausplay against all costs incurred by Ausplay in recovering such vehicles in the event they become bogged or otherwise immovable.

8    Compliance with Laws

8.1 The Client and Ausplay shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services and to ensure the Services comply with the (impact attenuation and fall zone dimension) requirements of Australian Standard AS/NZS – 4422:1996 for the fall heights, site plan and equipment all which shall be specified in the relevant Compliance Certificate issued upon completion.
8.2 The Client acknowledges and accepts that the Compliance Certificate will not be issued and any warranty applicable to the Services shall not commence until such time as Ausplay has received payment in full for all Services provided.
8.3 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
8.4 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

9    Client's Responsibilities

9.1 Unless otherwise stated in Ausplay's quotation, the Client will be solely responsible for the following:
(a)All base preparation. Where the base is to be prepared by the Client, Ausplay will provide a specification for the Client to use and may carry out an inspection of the work done. Failure to prepare in accordance with this specification may result in amongst other things:
(i) Delayed installation until the base preparation is corrected;
(ii) Extra costs to correct the base preparation.
(b) All cleaning, levelling and other preparation of the site and supply of suitable base material;
(c) Removal/relocation/dumping of any soils/turf or other materials from the installation area including all landfill fees and transportation without prior arrangement;
(d) The identification and capping/removal/making safe of any pipes wires or reticulation points within or affecting the installation area;
(e) Ensuring that any reticulation around the site is off prior, during and immediately after installation;
(f) Site security and protection of surfaces during the installation and any curing time of the Goods;
(g) Removal/relocation/dumping of any tree roots, rocks, pipes, animals, insects and other obstructions or hazards from the installation area.
9.2 The Client is responsible for insuring any vehicles that are left with Ausplay for Goods to be installed. Ausplay shall take due care while the vehicles are at their work site.

10    Title

10.1 Ausplay and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Ausplay all amounts owing to Ausplay; and
(b) the Client has met all of its other obligations to Ausplay.
10.2 Receipt by Ausplay of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
10.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to Ausplay on request.
(b) the Client holds the benefit of the Client's insurance of the Goods on trust for Ausplay and must pay to Ausplay the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Ausplay and must pay or deliver the proceeds to Ausplay on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Ausplay and must sell, dispose of or return the resulting product to Ausplay as it so directs.
(e) the Client irrevocably authorises Ausplay to enter any premises where Ausplay believes the Goods are kept and recover possession of the Goods.
(f) Ausplay may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Ausplay.
(h) Ausplay may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

11    Personal Property Securities Act 2009 ("PPSA")

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Ausplay to the Client.
11.3 The Client undertakes to: (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Ausplay may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, Ausplay for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Ausplay;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Ausplay;
(e) immediately advise Ausplay of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 Ausplay and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by Ausplay, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by Ausplay under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

12    Security and Charge

12.1 In consideration of Ausplay agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Client indemnifies Ausplay from and against all Ausplay's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Ausplay's rights under this clause.
12.3 The Client irrevocably appoints Ausplay and each director of Ausplay as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client's behalf.

13    Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Ausplay in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Ausplay to inspect the Goods.
13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
13.3 Ausplay acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Ausplay makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Ausplay's liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, Ausplay's liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If Ausplay is required to replace the Goods under this clause or the CCA, but is unable to do so, Ausplay may refund any money the Client has paid for the Goods.
13.7 If the Client is not a consumer within the meaning of the CCA, Ausplay's liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Ausplay at Ausplay's sole discretion;
(b) limited to any warranty to which Ausplay is entitled, if Ausplay did not manufacture the Goods;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) Ausplay has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client's cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, Ausplay shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Ausplay;
(e) fair wear and tear, any accident, or act of God.
13.10 Ausplay may in its absolute discretion accept non-defective Goods for return in which case Ausplay may require the Client to pay handling fees of up to twenty-five percent (25%) of the value of the returned Goods plus any freight costs.
13.11 Notwithstanding anything contained in this clause if Ausplay is required by a law to accept a return then Ausplay will only accept a return on the conditions imposed by that law.

14    Intellectual Property

14.1 Where Ausplay has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Ausplay.
14.2 The Client warrants that all designs, specifications or instructions given to Ausplay will not cause Ausplay to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify Ausplay against any action taken by a third party against Ausplay in respect of any such infringement.
14.3 The Client agrees that Ausplay may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Ausplay has created for the Client.

15    Default and Consequences of Default

15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Ausplay's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes Ausplay any money the Client shall indemnify Ausplay from and against all costs and disbursements incurred by Ausplay in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Ausplay's Contract default fees, and bank dishonour fees).
15.3 Without prejudice to any other remedies Ausplay may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Ausplay may suspend or terminate the supply of Goods to the Client. Ausplay will not be liable to the Client for any loss or damage the Client suffers because Ausplay has exercised its rights under this clause.
15.4 Without prejudice to Ausplay's other remedies at law Ausplay shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Ausplay shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Ausplay becomes overdue, or in Ausplay's opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

16    Cancellation

16.1 Ausplay may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Ausplay shall repay to the Client any money paid by the Client for the Goods. Ausplay shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Ausplay as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 Cancellation of orders for Goods made to the Client's specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

17    Privacy Act 1988

17.1 The Client agrees for Ausplay to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Ausplay.
17.2 The Client agrees that Ausplay may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client. The Client understands that the information exchanged can include anything about the Client's creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3 The Client consents to Ausplay being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by Ausplay for the following purposes (and for other purposes as shall be agreed between the Client and Ausplay or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Ausplay, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client's credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client's account and/or the collection of amounts outstanding in the Client's account in relation to the Goods.
17.5 Ausplay may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client's name, sex, address, previous addresses, date of birth, name of employer and driver's licence number);
(b) details concerning the Client's application for credit or commercial credit and the amount requested;
(c) advice that Ausplay is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client's overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Ausplay, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client's credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Ausplay has been paid or otherwise discharged.

18    Other Applicable Legislation

18.1 At Ausplay's sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 (Victoria), Building and Construction Industry Security of Payments Act 1999 (New South Wales), Construction Contracts Act 2004 (Western Australia), Building and Construction Industry Payments Act 2004 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory of Australia), Building and Construction Industry Security of Payments Act 2009 (Tasmania), Building and Construction Industry Security of Payments Act 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
18.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the any of the Acts listed in clause 18.1 (each as applicable), except to the extent permitted by the Act where applicable.

19    General

19.1 The failure by Ausplay to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Ausplay's right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which Ausplay has its principal place of business, and are subject to the jurisdiction of the Brisbane Ccourts in Queensland.
19.3 Subject to clause 13 Ausplay shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Ausplay of these terms and conditions (alternatively Ausplay's liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
19.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Ausplay nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 Ausplay may license or sub-contract all or any part of its rights and obligations without the Client's consent.
19.6 The Client agrees that Ausplay may amend these terms and conditions at any time. If Ausplay makes a change to these terms and conditions, then that change will take effect from the date on which Ausplay notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Ausplay to provide Goods to the Client.
19.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.