Terms and Conditions
“Agreement” means these Terms and Conditions and the attached Quotation; “the Business” shall mean the business of Enterprise Systems Australia Pty Ltd (ABN 84640987622) being Enterprise Systems Australia; “Customer” shall mean the party described in the Quotation to whom the Business shall supply or contract to supply the Works; “Quotation” means those terms attached to these Terms and Conditions for the supply of Works to Customer which, once signed by the Customer shall form part of this Agreement; “Work” shall be those goods and services as described in the Quotation.
These conditions shall form the basis of all Works performed by the Business. For the avoidance of doubt in the case of conflict, the Quotation shall have precedence over the provisions herein and shall not be varied except in writing by an authorized representative of the Business and Customer.
3. Payment Terms
(i) Customer shall pay the Business for the Works as follows:
(a) Where total value of Purchase Order is equal to or less than $50,000. Upon completion of the Works or delivery of the goods as the case may be, within twenty one (21) days of the date of the Business invoice.
(b) Where total value of Purchase Order is greater than $50,000. On a monthly basis in arrears within thirty (30) days of the date of Business’ invoice.
(ii) in all cases, the charges shall be exclusive of all applicable taxes, including GST which, if any, shall be assumed and paid promptly when due by Customer;
(iii) all amounts due hereunder to the Business by Customer that are not paid when due shall accrue interest from the day following the due date until paid in full. Interest shall be computed at 1.5% per month on a monthly basis and shall be paid by Customer together with any debt collection fees incurred by the Business in recovering monies outstanding including but not limited to, reasonable solicitors fees;
(iv) the Business reserves the right to stop work in the event any invoice remains outstanding thirty (30) days after the Due Date and shall not recommence work until all payments are made current and may require Customer to provide a bank guarantee for the balance of the contract sum on such terms as the Business may in its absolute discretion, require as security for future payments.
4. Reservation of Rights
(i) The Business reserves the following rights in relation to the goods until all accounts owed by the Customer to the Business are fully paid:
(a) ownership of the goods;
(b) to enter the Customer’s premises (or the premises of any associated company or agent where the goods are located) without liability for trespass or any resulting damage and retake possession of the goods; and
(c) to keep or resell any goods repossessed pursuant to (b) above.
(ii) If the goods are resold, or products manufactured using the goods are sold, by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoice price of the goods sold or used in the manufacture of the goods sold in a separate identifiable account as the beneficial property of the Business and shall pay such amount to the Business upon request. Notwithstanding the provisions above the Business shall be entitled to maintain an action against the Customer for the purchase price and the risk of the goods shall pass to the Customer upon delivery
5. Business’ Responsibilities
(i) The Business’ liability for goods supplied, fitted or repaired is limited to making good any defects by repairing the defects or at the Business’ option replacement, within a period not exceeding 28 days after the goods have been dispatched as long as:
(a) defaults arise solely from the Business’ workmanship;
(b) the goods have not received any maltreatment, inattention or interference;
(c) accessories of any kind used by the Customer are manufactured by or approved by the Business;
(d) the seals of any kind on the goods remain unbroken; and
(e) the defective parts are returned free of cost to the Business.
(ii) If the goods are not manufactured by the Business the guarantee of the manufacturer of those goods is accepted by the Customer and is the only guarantee given to the Customer in respect of the goods. The Business agrees to assign to the Customer on request made by the Customer the benefit of any warranty or entitlement to the goods that the manufacturer has granted to the Business under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
(iii) The Business is not liable for and the Customer releases the Business from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the Business and the responsibility for any claim has been specifically accepted by the Business in writing. In any event the Business’s liability under this paragraph is limited strictly to the replacement of defective parts in accordance with para 5 (i) of these conditions.
(iv) Comply with Laws The Business shall comply with all relevant laws and regulations from time to time.
(v) Responsibility for employee’s payroll, superannuation, and other benefits
(a) All persons furnished by the Business shall be considered solely the Business’s employees or agents, and the Business shall be responsible for payment for payroll and superannuation payments, including any other contributions when required by law;
(b) the Business shall be responsible for its own labour relations with any trade or union represented among its employees and shall negotiate and be responsible for adjusting all disputes between itself and its employees or any union representing such employees;
(c) Customer agrees that Business may assign or Subcontract the whole or any part of the Contract upon notice to Customer of its intent to do so. The Business’s obligations or liabilities under the Contract shall not be diminished because any aspect of the work has been assigned or subcontracted;
(vi) Insurances Business agrees to carry:
(a) worker’s compensation and accident insurance to cover a maximum liability of $2,000,000 per event, in respect of all employees and contractors to be used by the Business in the performance and provision of the Works; and
(b) third party liability insurance with an indemnity limit of not less than $20,000,000 for each and every claim.
6. Customer’s Responsibilities
(i) Safe Work Environment. Customer shall provide and maintain a safe workplace and ensure that the Business employees, other workers and others are protected from health and safety risks;
(ii) Indemnity The Customer agrees to indemnify and hold harmless Business, its affiliates, and its customers and their officers, directors, employees, successors, and assigns (all hereinafter referred to in this clause as “Business”) from and against any losses, damages, claims, demands, suits, liabilities, and expenses (including reasonable solicitor’s fees) that arise out of or result from:
(a) the Work completed under the contract;
(b) failure on the part of the Customer to perform the Customer’s obligations under this Agreement;
(c) injuries or death to persons or damage to property, including theft, in any way arising out of or occasioned by, caused or alleged to have been caused by or on account of an unsafe work environment; a negligent act or omission or wilful misconduct on the part of Customer or by equipment furnished by the Customer. The Customer agrees to defend Business, at Business’ request, against any such claim, demand or suit. Business agrees to notify the Customer within a reasonable time of any written claims or demands against Business for which the Customer is responsible under this clause.
7. Limitation of Liability
(i) Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Business is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply,
layout, assembly, installation or operation of the goods or arising out of the Business’ negligence or in any way whatsoever and the Customer releases and discharges the Business from any claim arising out of or in connection with the installation and/or supply of the Works and indemnifies and holds harmless the Business in respect of any such claim.
(ii) The Business is not responsible to the Customer or any person claiming through the Customer for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the Business is legally responsible for the person who caused or contributed to that loss or damage).
If the Customer for any reason postpones for a period of 15 days or more or cancels Work which he has commissioned, charges will be payable for all completed Work up to the postponement or cancellation date and for all other costs which may accrue as a result of the postponement or cancellation.
Business may immediately terminate this Agreement and discontinue the Works without liability if:
(1) Customer fails to pay any bill within thirty (30) days of the due date;
(2) Customer fails to cure its breach of any provision of the Agreement within thirty (30) days after delivery of written notice to Customer by Business; or
(3) any bankruptcy, insolvency, administration, liquidation, receivership or winding up proceeding is commenced in respect of the Customer.
10. Applicable Law And Venue
This Agreement, or any dispute arising in connection with it, shall be governed and construed according to the laws of Western Australia and the parties fully submit to the exclusive jurisdiction of the courts of Western Australia.
11. If the Customer is a company (other than a publicly listed company) the Business’ acceptance of the Customer’s offer to purchase the Business’ works is conditional upon each director of the company entering into this Agreement as a Guarantor.
12. In consideration of the Business entering into this Agreement at the request of the Guarantor, the Guarantor hereby guarantees to the Business the due and punctual performance and observance by the Customer of each and every covenant, obligation and stipulation on the part of the Customer contained or implied in this Agreement including the due and punctual payment by the Customer of all moneys payable by the Customer.
13. For the purpose of securing payment to the Business the Guarantor hereby charges all of its or his or her real and personal property (including all property acquired after the date of this Deed) whatsoever and wheresoever situated including land (if any) referred to in this Deed and all of its or his estate and interest therein, in favour of the Business, with the payment of all sums of money, whether present, future or contingent, to which the Guarantor may become liable to pay to the Business and covenants to deliver to the Business within seven (7) days of written demand a memorandum of mortgage in registrable form payable on demand and authorises and consents to the Business taking all actions necessary to give effect to this security including the lodgement of a Caveat upon Title of the Guarantor’s Real Property. The Guarantor hereby irrevocably appoints the Business and any person nominated by the Business severally the attorney of the Guarantor with power to execute sign, seal and deliver (which delivery may be subject to such terms and conditions as the attorney thinks fit) and such mortgage or other document to give effect to this security.
14. The Guarantor also hereby agrees to indemnify and keep indemnified the Business from and against all losses costs expenses and damages sustained or incurred by the Business arising out of or in respect of any breach or default by the Customer in duly and punctually observing and performing such covenants and obligations.