Terms and Conditions

1. Interpretation

In these terms and conditions:
"Customer" means the person(s) or body(ies) corporate to whom these terms and conditions are directed.
"Goods" means all goods ordered from the Supplier by the Customer.
"GST" means the same as it does within the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"PPSA" means Personal Property Securities Act 2009 (Cth).
"Services", whether in isolation or in conjunction with the Goods, means the services of supply, delivery, fitting, maintenance and/or repairs provided by the Supplier, its officers, agents, employees, consultants and contractors in relation to the Goods.
"Supplier" means Antipodes Australia (ABN 33 462 886 634).

2. Application of Terms

2.1. The placement by the Customer of a purchase order with the Supplier, whether written or verbal, is deemed acceptance of these Terms and Conditions by the Customer. These Terms and Conditions apply to the sale of any items, equipment or Services of the Supplier or, where a quotation is made, they shall form part of that quotation.

2.2. The Supplier may vary the Terms and Conditions from time to time. The Customer agrees that the ordering of any Goods and/or Services after the notice of variation has been issued to the Customer will constitute an acceptance by the Customer of the variation of any of these Terms and Conditions.

2.3. No variation of any of these Terms and Conditions shall be binding on the Supplier unless agreed by an authorised officer of the Supplier in writing. No agent or representative of the Supplier has the authority to waive or alter these Terms and Conditions.

3. Precedence

3.1. In the event of conflict between these Terms and Conditions and those conditions which may be included in, or implied by, any document forming part of any enquiry, specification, order or contract, then these Terms and Conditions shall prevail.

3.2. If any condition expressed herein is deemed to be contrary to or excluded by law, then these Terms and Conditions shall be modified, but only to the extent of those parts of the Terms and Conditions affected.

4. Acceptance

4.1. A quotation shall remain open for acceptance for 14 days from the date thereof, after which time it shall be subject to review and reconfirmation.

4.2. A quotation is not to be construed as an offer or obligation to sell to a Customer and the Supplier reserves the right to accept or decline any order for Goods and/or Services (wholly or partially) at any time prior to the delivery of Goods and/or Services, in which event the Supplier shall be under no further obligation in respect of the order for the Goods and/or Services.

4.3. The acceptance of any quotation must be accompanied by sufficient information to enable the Supplier to proceed with the order to completion.

5. Pricing

5.1. Unless otherwise stated all prices quoted by the Supplier are net, exclusive of GST.

5.2. The prices quoted apply only if all of the Goods and/or Services included in the quotation are purchased. Should the Customer require partial supply only, the Supplier reserves the right to submit a revised quotation.

5.3. If the Customer requests any variation to the quotation, the Supplier may increase the quotation to account for the variation.

5.4. All prices are based upon current manufacturing costs and current costs of materials, labour and insurance, current rates of freight, import duty and currency exchange and all other costs and charges prevailing at the date of the quotation. Should there be any variation in any such costs, rates or charges, the Supplier shall have the right to vary the quoted price to enable it to enjoy the same profit margin as if no variation in the said costs, rate or charges, had taken place.

5.5. Should there be any variations between the actual site measurements and dimensions on the drawings reviewed in formulating a quotation, the Supplier reserves the right to revise its price accordingly.

6. Terms of Payment

6.1. Time for payment for any Goods and/or Services is of the essence.

6.2. Unless agreed otherwise and subject to clause 6.3, payment is required on the following basis:
a) If the Goods are custom-made, the total sum due and owing by the Customer for the supply of Goods upon placement of the order; and
b) In any other case, the total sum due and owing by the Customer for the supply of Goods and/or Services upon receipt of the invoice.

6.3. If the Customer completes the required account application form and the Supplier opens at its sole discretion a customer account, payment is required 30 days from the date of the invoice issued by the Supplier to the Customer.

6.4. The Supplier reserves the right to require cash payment in full on delivery of the Goods and/or supply of the Services to the Customer.

6.5. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.

6.6. Payment terms may be revoked or amended at the Supplier's sole discretion immediately upon giving the Customer written notice.

6.7. The Supplier may at its sole discretion charge interest on any overdue invoiced amount at a rate of 10% per month, calculated pro rata, until the invoiced amount is received in full.

6.8. The Supplier reserves the right to commence recovery action on an overdue amount without notice to the Customer. Any legal or collection costs incurred in the recovery of any overdue amounts will be recoverable from the Customer on an indemnity basis.

7. Default

7.1. If:
a) there is any default or failure by the Customer in making due and punctual payment to the Supplier of any monies owed by the Customer;
b) an administrator, liquidator or provisional liquidator is appointed in respect of the Customer;
c) a receiver, receiver and manager, administrator or controller is appointed in respect of any assets or group of assets of the Customer;
d) the Customer goes into bankruptcy or is wound up;
e) the Customer becomes, admits in writing that it is, or is declared by a court to be unable to pay its debts as and when they fall due; or
f) there is a breach by the Customer of any of these Terms and Conditions, then all monies payable by the Customer to the Supplier shall at the Supplier's election become immediately due and payable notwithstanding the due date for payment shall not have expired.

7.2. Upon the occurrence of a default pursuant to clause 7.1, the Supplier may without prejudice to any other rights they may have do any or all of the following:
a) withhold any further deliveries of Goods and/or Services;
b) in respect of Goods and/or Services already delivered, enter onto the Customer's premises to recover and resell the Goods for their own benefit; and
c) recover from the Customer the cost of materials or Goods acquired for the purpose of future deliveries.

8. Delivery

8.1. Notwithstanding that the Supplier will endeavour to comply with the timeframe for delivery of Goods and/or Services requested by the Customer, delivery time is not guaranteed nor is it of the essence. The Supplier will not be liable for any loss or damage of whatsoever nature arising by virtue of delay in the delivery of Goods and/or Services.

8.2. The delivery period quoted commences from the date the Supplier receives acceptance of the quotation from the Customer and 20% of the total sum due and owing by the Customer for the supply of the Goods and/or Services. Quoted delivery dates are subject to confirmation when an order is placed.

9. Returns Policy

9.1. Subject to the requirements of any law, the Supplier may consider (without any obligation to accept) a Customer's request for Goods to be returned for credit, if:
a) the Goods have not been used or damaged and are returned in good and saleable condition, in the original packaging;
b) the Customer first pays all freight and other charges to deliver the Goods to the Supplier's premises (the Supplier will not accept any Goods sent or payable on a "freight forward" basis); and
c) the Customer supplies to the Supplier the original invoice number and date of supply.

9.2. The Supplier will not consider a Customer's request for second-hand Goods to be returned for credit.

9.3. Specially procured Goods will be subject to the Supplier's authorisation and will incur a 25% restocking fee, which the Customer acknowledges is a genuine pre-estimate of the Supplier's loss.

9.4. No credits will be given for freight charges, delivery fees, taxes and duties.

10. Claims upon Supplier

10.1. Subject to the requirements of any law, all claims for the Supplier's failure to comply with the Customer's order whether due to shortfall, defect, incorrect delivery or otherwise must be made by giving written notice to the Supplier within 14 days from the date of delivery.

10.2. If the Customer fails to provide such notice then the Customer shall be deemed to have accepted the Goods provided that if the Supplier agrees to accept the return of any Goods they must be in a good and saleable condition and a handling charge will be payable by the Customer.

11. Title and Property

11.1. Unless the Supplier otherwise specifies in writing, all Goods sold by the Supplier to the Customer shall be, and remain, the property of the Supplier until the full purchase price thereof, and of all other Goods sold by the Supplier to the Customer, has been paid in full to the Supplier.

11.2. The Customer agrees:
a) to keep the Goods sold to it by the Supplier separate and identifiable; and
b) not to merge, sell, give or otherwise dispose of the Goods sold to it by the Supplier, until such time as the purchase price in respect of such Goods is paid in full.

11.3. In the event that the Customer breaches the obligations set out above, the Customer agrees to hold the purchase price of the Goods on trust for the Supplier.

11.4. The Customer gives the Supplier, its agents and employees an irrevocable licence to access any premises where the Goods sold to the Customer by the Supplier are stored from time to time for the purposes of inspecting and/or repossessing the said Goods. The Customer releases and discharges the Supplier from any and all claims which the Customer may have against the Supplier arising from the exercise of this right.

11.5. The Customer agrees to indemnify and hold the Supplier, its agents and employees harmless against any and all claims, suits or actions, including for costs (whether by the Customer or a third party) arising from the entry or repossession of the Goods by the Supplier, its agents or employees pursuant to clause 11.4.

11.6. The Customer agrees to pay all costs, including legal costs on an indemnity basis, of the Supplier incurred in repossessing the Goods pursuant to clause 11.4.

12. Cost of Carriage and Packing

12.1. The price stated in any quotation for the supply of Goods by the Supplier to the Customer may include the cost of carriage from the premises of the Supplier or any other location determined at the Supplier's sole discretion to the Customer depending on the Incoterm referred to in the quotation.

12.2. The Customer may nominate, arrange or retain a carrier to effect delivery of the Goods from the Supplier or any other location determined at the Supplier's sole discretion to the Customer. Where the Customer does not nominate or state that it will arrange or retain the carrier, carriage will be arranged by the Supplier on the Customer's behalf and the Customer must bear all carriage costs.

12.3. The price stated in any quotation for the supply of Goods by the Supplier to the Customer includes standard packing, unless otherwise agreed in writing by the Customer and the Supplier.

12.4. Should the Customer issue forwarding instructions for dispatch of the Goods to site or elsewhere, the total cost of demurrage shall be borne by the Customer.

13. Risk and Insurance

13.1. All Goods will be at the Customer or Supplier's risk and will become the Customer or Supplier's insurance responsibility after they leave the Supplier's premises or any other location determined at the Supplier's sole discretion in accordance with the Incoterm referred to in the quotation. If the Customer requests it in writing, the Supplier may, at the Customer's expense, insure the Goods.

13.2. The Customer or Supplier assumes all risk and liability for loss, damage or injury to persons or to the property of the Customer, or third parties arising out of the use, installation or possession of any of the Goods sold by the Supplier, save where such liability arises from the Supplier's own negligence in accordance with the Incoterm referred to in the quotation.

14. Taxes

14.1. Unless otherwise expressly agreed, or shown on an invoice or quotation issued by the Supplier, the prices specified do not include taxes. The Customer must bear and pay all such taxes.

14.2. The Supplier may recover from the Customer the amount of any GST in relation to any Goods and/or Services in addition to, and at the same time and in the same manner as, any amount that the Customer is obliged to pay for those Goods and/or Services.

15. Intellectual Property

15.1. Copyright in all drawings, reports, designs, specification, bills of quantity, calculations and/or other documents provided by the Supplier in connection with the quotation and sale of Goods and Services shall remain the property of the Supplier.

15.2. Where the Supplier has followed a design or instruction furnished or given by the Customer, the Customer will indemnify the Supplier against all damages, penalties, costs and expenses of any description to which the Supplier may become liable through any work required to be done in accordance with those instructions, including but not limited to an infringement of any patent, trade mark, registered design, copyright or common law.

16. Applicable Law

16.1. Any supply of Goods and/or Services by the Supplier to the Customer, and these Terms and Conditions, will be governed by the laws of the State of Queensland.

16.2. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions.

17. Warranty

17.1. The Supplier does not give any warranty or make any representations that the Goods are free from defect in workmanship and/or materials (save for those warranties which are imposed by statute, which cannot be contracted out of).

17.2. The Goods will be deemed to be defective if the Goods are not of merchantable quality; do not conform with any sample, specification or other description given to the Supplier by the Customer in relation to the Goods; being in the nature of Services, are not of a reasonable standard, quality, value or grade; or, being Goods, do not comply with any consumer guarantee or implied warranty applicable to the supply of the Goods which cannot be excluded by law or statute.

17.3. Where the Goods and/or Services are defective, the Supplier at its option may elect to:
a) replace the Goods or refund the cost of the Goods;
b) repair the Goods or reimburse the Customer for the cost of repairing the Goods;
c) resupply the Services;
d) if payment of the purchase price has not been made for the Goods and/or Services by the Customer, release the Customer from any obligation to pay the purchase price; or
e) if payment of the purchase price for the Goods and/or Services has been made by the Customer, refund the purchase price to the Customer, subject to the Customer, where applicable, first restoring the unencumbered ownership of the Goods to the Supplier.

17.4. The Supplier will make good, by repair, or at the Supplier's option by replacement, reimbursement or refund, defects which under proper use become apparent in the Goods within a period of 12 months after original delivery of the Goods to the Customer, or after completion of commissioning if carried out by the Supplier provided that the overall period does not exceed 18 months from the date of completion of the Supplier's works. The Supplier's liability is limited to the replacement of defective parts whether the work is carried out on the Customer's site or at the Supplier's premises.

17.5. All Goods supplied are subject to manufacturer's warranty which, in general, covers replacement of parts but does not include any charges arising from labour, travel or freight.

17.6. Claims for replacement of faulty materials under manufacturer's warranty will be referred to the respective manufacturer and all costs over and above the manufacturer's allowance to the Supplier are payable by the Customer.

17.7. Other than any remedies the Customer may have pursuant to law or statute, the sole remedies of the Customer under or in relation to the supply of Goods and/or Services by the Supplier to the Customer, whether in contract, in tort, under statute or otherwise are only as specified in these Terms and Conditions and are subject to the limitations set out in clause 17.9 and the following limitations:
a) the Supplier, its officers, employees, agents, consultants and contractors will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters referred to in clause 17.2, except to comply with its obligations (subject to the other provisions and limitations in this clause 17) under clause 17.3;
b) all conditions, warranties and other terms pertaining to the condition or quality of Goods are excluded to the extent permitted by law;
c) the Customer warrants and represents that it is relying upon its own skill and judgment in relation to the quality of the Goods, and their fitness for any purpose for which they may be required, and not upon any conduct or representation of the Supplier or any of its officers, employees, agents, consultants or contractors; and
d) the Customer must not make any claim or demand, or take any action or other proceeding against the Supplier, or any of its officers, employees, agents, consultants or contractors for any loss of profits, loss of revenue, loss of anticipated savings, loss or corruption of data, loss of contract or opportunity, loss of goodwill or any indirect, special or consequential loss of whatsoever nature, including any loss of a type described in this sub-clause, whether or not reasonably foreseeable, reasonably contemplatable or actually contemplated by the parties at the time of agreement to purchase/supply the Goods and/or Services, arising out of, or in any way directly or indirectly relating to the supply of Goods and/or Services, including any of the matters referred to in clause 17.2.

17.8. Subject to the remainder of this clause 17, the Customer: a) releases and forever discharges the Supplier and its officers, employees, agents, consultants and contractors from and against all claims under or in relation to the supply of any Goods and/or Services by the Supplier; and
b) indemnifies the Supplier and the Supplier's officers, employees, agents, consultants and contractors in respect of all loss, damages and expenses relating to, or arising out of, any claim.

17.9. To the extent permitted by law, the Supplier's total liability for any claim under or in relation to the supply of Goods and/or Services by the Supplier to the Customer, is limited to the price paid by the Customer for the Goods and/or Services the subject of any claim.

18. Indemnity

18.1. The Customer indemnifies the Supplier and its officers, employees, agents, consultants and contractors against all losses, claims, actions, liabilities, damages, costs, charges, expenses, outgoings or payments which the Supplier pays, suffers or incurs arising directly or indirectly from any:
a) breach by the Customer of these Terms and Conditions; or
b) any act or omission (including any negligence, unlawful conduct or wilful misconduct) by the Customer or any of its officers, employees, agents, consultants and contractors relating to the matters referred to in these Terms and Conditions.

18.2. The Customer's liability to indemnify the Supplier is reduced proportionately to the extent that the Supplier or any of its officers, employees, agents, consultants and contractors cause or contribute to the loss, claim, action, liability, damage, cost, charge, expense, outgoing or payment.

19. Descriptive Matter

Descriptions and illustrations contained in the Supplier's catalogues, price lists and other advertising matter are only general descriptions of the Goods and/or Services therein and shall not constitute a basis for, or part of, any contract and/or agreement in respect of the supply of Goods and/or Services by the Supplier to the Customer.

20. Performance

Any performance figures given by the Supplier are estimates only. The Supplier is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

21. Security and Retention Sums

Where the Supplier requires a security deposit from the Customer this will be lodged in the form of an unconditional Bank Guarantee and must be provided by the Customer to the Supplier within 21 days of acceptance of the quotation by the Customer.

22. Storage

The Supplier reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Customer within 14 days of a request by the Supplier for such instructions. The parties agree that the Supplier may charge for storage from the first day after the Supplier requests the Customer to provide delivery instructions.

23. Notices

23.1. Notice to be given by the Customer to the Supplier may be delivered personally or sent to Danielle Bailly at the Supplier's address at 25 Bentham Street, Mt Gravatt, QLD 4122, Australia and unless the contrary is proved shall be taken as delivered when received by the Supplier.

23.2. Notice to be given to the Customer by the Supplier may be delivered personally, or sent to the Customer's last known postal address, facsimile or electronic mail address and unless the contrary is proved shall be taken as delivered on the second business day following posting or on the date that such facsimile or electronic mail was sent.

23.3. Invoices and statements are deemed received by the Customer on the second business day after posting by ordinary prepaid post but otherwise on the date of transmission by facsimile or electronic mail.

24. Force Majeure

Notwithstanding anything herein contained the Supplier shall not be liable for any loss, damage or delay caused by events beyond its reasonable control including, without limitation, industrial disputes, war, acts or threats of terrorism, strikes, lockouts, accident, breakdown, import or export restrictions, delay of or inability to obtain labour, inaccessibility to site caused by wet weather, acts of God, fire, flood or drought. If an event force majeure occurs, the Supplier may suspend or terminate the order by written notice to the Customer. In the event of termination of the order by virtue of any such cause arising, the Supplier shall not in consequence thereof be liable for damages but the Customer shall pay the Supplier a portion of the contract price proportionate to the work actually done and materials delivered up to the date of such termination.

Notwithstanding anything herein contained the Supplier shall not be liable for any loss, damage or delay caused by events beyond its reasonable control including, without limitation, industrial disputes, war, acts or threats of terrorism, strikes, lockouts, accident, breakdown, import or export restrictions, delay of or inability to obtain labour, inaccessibility to site caused by wet weather, acts of God, fire, flood or drought. If an event force majeure occurs, the Supplier may suspend or terminate the order by written notice to the Customer. In the event of termination of the order by virtue of any such cause arising, the Supplier shall not in consequence thereof be liable for damages but the Customer shall pay the Supplier a portion of the contract price proportionate to the work actually done and materials delivered up to the date of such termination.
Exclusions, if applicable, will be defined in any quotation issued by the Supplier to the Customer.

25. Cancellation

25.1. If the Supplier is unable to deliver or provide the Goods and/or Services, the Supplier may cancel the Customer's order (even if it has been accepted) by written notice to the Customer.

25.2. If the Customer cancels an order, the Supplier shall be entitled to receive payment from the Customer for all the work performed by the Supplier to the date of cancellation, in addition to damages which the Customer may rightly recover in connection with the cancellation of the order. The Supplier shall refund to the Customer any monies already received from the Customer for such cancelled order over and above the monies which the Supplier is entitled to retain pursuant to this clause 26.

26. Guarantor

26.1. In the event the guarantor details in the account application form are completed, this clause 27 shall apply.

26.2. The Guarantor hereby guarantees to the Supplier the payment by the Customer of all monies due and owing by the Customer to the Supplier at the times and upon the conditions set forth in these Terms and Conditions and the due and punctual performance and observance by the Customer of the covenants, conditions, restrictions and terms contained in these Terms and Conditions of Sale.

26.3. The Guarantor indemnifies the Supplier against any loss which the Supplier may sustain by reason of or in consequence of the Customer failing to pay any monies due and owing to the Supplier by the Customer and/or failing to perform and observe the terms of these Terms and Conditions.

26.4. The Guarantor agrees that any sum of money or damages intended to be hereby secured which may not be recoverable from the Guarantor as Guarantor for any reason whatever shall nevertheless be recoverable from the Guarantor as sole or principal debtor.

26.5. The Guarantor does hereby declare that this guarantee shall not be affected by the Guarantor's death but shall be binding on the executors or administrators of the Guarantor's estate and if more than one person is named as the Guarantor hereunder then they declare this guarantee shall not be affected by the death of any of them but shall be binding on the executors and administrators of their respective estates and they further declare that the obligations contained herein shall bind them jointly and severally.

26.6. The Guarantor shall not be discharged or released from this guarantee by any forbearance whether as to payment, time, performance or otherwise.

26.7. The Guarantor agrees that, while the Supplier remains in possession of the Goods, this guarantee cannot be revoked without the written consent of the Supplier.

27. Guarantees

27.1. If the Goods are not manufactured by the Supplier 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 Supplier 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 Supplier under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.

27.2. The Supplier is not liable for and the Customer releases the Supplier from any claims in respect of faulty or defective design of any Goods supplied unless such design has been wholly prepared by the Supplier and the responsibility for any claim has been specifically accepted by the Supplier in writing.

27.3. 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 Supplier 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 Supplier's negligence or in any way.

28. Termination

28.1. In the absence of any breach of this agreement, either party may terminate this agreement in its absolute discretion with a minimum of 30 days written notice to the other party.

28.2. This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).

28.3. Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 14 days after receipt of a written notice by the other party requiring rectification of the breach.

28.4. Exercise of the right of termination afforded to either party under this clause 29 will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.

28.5. The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.