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TERMS AND CONDITIONS

1 INTERPRETATION

  • 1.1. In these Terms and Conditions:
    • 1.1.1. Contract means an Order or Quotation pursuant to which the Company agrees to supply the Goods and/or Services to the Client and the Client agrees to receive and pay for the Goods and/or Services, and includes these Terms and Conditions;
    • 1.1.2. Company means Jako Industries Pty Ltd (ACN 008 791 893);
    • 1.1.3. Client means the individual or entity that is identified on the Order or the Quotation;
    • 1.1.4. Goods means all mechanical plant, equipment and materials supplied by the Company to the Client pursuant to the Contract or any other goods provided by the Company to the Client from time to time;
    • 1.1.5. GST Act means the New Tax System (Goods and Services Tax) Act 1999 or any related act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax;
    • 1.1.6. GST means tax payable on taxable supplies within the meaning of the GST Act;
    • 1.1.7. Order means an order placed by the Client with the Company for the supply of specific Goods and/or Services by the Company to the Client;
    • 1.1.8. PPSA means the Personal Property Securities Act 2009 (Cth);
    • 1.1.9. PPSR means the personal property securities register;
    • 1.1.10. Quotation means a written quotation provided by the Company upon the request of the Client for the cost of supplying Goods and/or Services to the Client and includes (but is not limited to) a Tender Proposal;
    • 1.1.11. Services means the services supplied by the Company to the Client in relation to the Goods the subject of the Contract or any other Services provided by the Company to the Client from time to time; and
    • 1.1.12. Tender Proposal means a response to a Client’s request for tenders for specific works and includes the Company’s written tender proposal and quotation for the supply of Goods and/or Services from the Company to the Client.


2 GENERAL

  • 2.1. These terms and conditions (“Terms and Conditions”) form part of the Contract for the supply of the Goods and/or the Services by the Company to the Client.
  • 2.2. Unless expressly excluded these Terms and Conditions shall prevail over any other terms or conditions relating to the supply of the Goods and/or Services to the Client where such other terms and conditions conflict with those contained herein.


3 INSURANCE

  • 3.1. During the period between delivery and final payment for the Goods, the Client will maintain sufficient insurance (noting the interest of the Company) thereon and, upon request by the Company provide evidence thereof, against loss or damage from any cause to cover the unpaid balance of the purchase price and failing to do so no loss or damage suffered during the aforesaid period shall relieve the Client from payment of the balance of the purchase price or from any of the Terms and Conditions.
  • 3.2. During the period referred to in clause 3.1 above, the Client will maintain the Goods delivered by the Company in good condition and free from any damage.


4 QUOTATION AND PRICES

  • 4.1. Subject to clause 4.4, prices for the Goods and/or Services are the prices as at the date of quotation.
  • 4.2. A Quotation issued by the Company to the Client is an offer to sell and/or provide the Goods and/or Services. A Quotation expires at the date specified as an expiry date within the Quotation. If no expiry date is expressly specified, the Quotation expires 30 days after the date of issue.
  • 4.3. The Contract for the supply of the Goods and/or Services is entered into between the parties:
    • 3.4.1 if the Client has provided the Company with an Order, at the time the Company communicates its acceptance (by writing or conduct) of the Order to the Client; or
    • 3.4.2 if a Quotation has been given to the Client by the Company, at the time the Client communicates its acceptance (by writing or conduct) of the Quotation to the Company.
  • 4.4. Where in the period between the issuing of a Quotation and the delivery of the relevant Goods and/or Services, the Company incurs an increase in the cost of producing and/or delivering the Goods and/or Services, the Company reserves the right to increase the quoted price of those Goods and/or Services, at any time prior to delivery, by a reasonable amount reflecting that increase in the cost of production and delivery of the Goods and/or Services.
  • 4.5. Unless otherwise specified, all quoted and advertised prices are exclusive of GST.
  • 4.6. Where the Company makes a taxable supply (within the meaning of the GST Act) to the Client in connection with these Terms and Conditions and the consideration otherwise payable for the taxable supply does not include GST, the Company will be entitled to recover from the Client the amount of any GST payable or applicable to the taxable supply.


5 PAYMENT

  • 5.1. Where the Company has agreed to extend credit to the Client, the Company will submit an invoice to the Client for Goods and/or Services supplied to the Client and the full amount of the invoice together with any additional charges (if any) must be paid by the Client to the Company by no later than 30 days after the date of the invoice or such other date for payment as the Company and the Client agree in writing.
  • 5.2. The Client must not retain any money owing to the Company notwithstanding any breach or alleged breach by the Company of the Terms and Conditions, including the supply of allegedly faulty or defective Goods and/or Services.
  • 5.3. If the Company (acting reasonably) is not satisfied as to the Client’s ability to pay for the Goods and/or Services, it may require payment up front, and if not paid may suspend or terminate its supply of the Goods or performance of the Services, and shall not be liable in any way for any claim, damage, expense or cost arising there from and all monies then outstanding by the Client shall become immediately due and payable.
  • 5.4. Any expenses, costs or disbursements incurred by the Company in recovering any outstanding monies from the Client, including debt collection, agency fees and legal costs on an indemnity basis, shall be paid by the Client providing that those fees do not exceed the charges as charged by that debt collection agency/solicitor.
  • 5.5. The Company shall be entitled without notice to terminate any credit arrangement with the Client in the event of the Client defaulting under these Terms and Conditions.
  • 5.6. The Company shall be entitled at any stage during the continuance of the Contract to request such security or additional security as the Company shall in its discretion think fit and shall be entitled to withhold supply of any of the Goods and/or Services or credit arrangements until such security or additional security is obtained by or provided to the Company.
  • 5.7. The company shall be entitled to charge interest on all overdue amounts owed by the customer to the company at the rate which is 6% per annum above the Reserve Bank of Australia cash rate target. Interest will be calculated daily and capitalised monthly.
  • 5.8. In the event that the Client is declared bankrupt or bankruptcy proceedings are brought against the Client or, if the Client is a Company, if it is subject to voluntary administration, a winding-up proceeding, a receiver or manager or receiver and manager of its assets is appointed, or if it shall commit any breach of or fail to perform any one or more of these Terms and Conditions, then:
    • 5.8.1. all monies owed by the Client to the Company shall become immediately due and payable;
    • 5.8.2. the Company may by notice in writing terminate the Contract forthwith and any such termination shall not affect any other rights or remedies which the Company may have in consequence of any such breach or non-performance by the Client.
  • 5.9. The Client as beneficial owner charges in favour of the Company all its interest in all of the present and future real property of the Client as security for the due and punctual payment of all debts and monetary liabilities owed by the Client to the Company. The Client consents and agrees to:
    • 5.9.1. the Company lodging a caveat, against the title of any real property held by the Client, to note the Company’s interest; and
    • 5.9.2. upon demand by the Company, the Client will immediately execute a mortgage on terms satisfactory to the Company to more particularly describe the security interest conferred by this clause. Should the Client fail within a reasonable time of such demand to execute such mortgage then the Client irrevocably appoints the Company as its attorney with authority to do on its behalf anything that it may lawfully authorise an attorney to do including, without limitation, to make, sign, execute and deliver any document and to take possession of, use, sell or otherwise dispose of any real property of the Client.


6 RETENTION OF TITLE AND PPSA

  • 6.1. The Company remains the owner of the Goods provided under the Contract until the price of the Goods in full is paid.
  • 6.2. The Company has the right to register its ownership interest in the Goods as a security interest under the PPSA, the cost of which to be borne by the Company.
  • 6.3. Where the Company anticipates future dealings with the Client, that registration may be made in a manner to cover those future dealings.
  • 6.4. The Client and the Company agree that:
    • 6.4.1. the Company’s interest in the Goods is a purchase money security interest for the purpose of the PPSA;
    • 6.4.2. the Company’s interest in the Goods extends to the proceeds of the Goods;
    • 6.4.3. the subject matter referred to in section 275(1) of the PPSA is confidential; and
    • 6.4.4. the Client waives the right to receive a verification statement in relation to any such registration.
  • 6.5. The following provisions of the PPSA do not apply and, for the purposes of section 115 are “contracted out” of by the parties: sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
  • 6.6. The parties agree that the Company has the power to retain, deal with or dispose of any property seized by it in the manner specified in sections 123, 125, 126, 128, 129 and 134(1) of the PPSA and in any other method permitted by law.
  • 6.7. If the Client sells the Goods before it has paid in full for them, until the Company recovers any amounts owed to the Company in full:
    • 6.7.1. the Company’s security interest attaches to the proceeds of the sale of the Goods (including any rights to be paid any amounts due from a third party to the Client in respect of the Goods);
    • 6.7.2. the Client holds the whole of the proceeds (and those rights) on trust for the Company; and
    • 6.7.3. where the Client is not paid, the Client must assign its claim for payment in respect of the sale of the Goods to the Company if the Company requests the Client to do so; and
    • 6.7.4. to the extent the Goods are not sold free of the Company’s security interest by the operation of the PPSA or with the Company’s agreement in writing, the Goods remain subject to that security interest.


7 DELIVERY

  • 7.1. While the Company will make every effort to effect delivery in accordance with pre-arranged dates, no guarantee is agreed or implied as to delivery dates nor will the Company be liable for any loss or damage arising from delays in delivery howsoever caused and whether in respect of the whole or part of the Goods ordered.
  • 7.2. A delay in delivery shall not entitle the Client to terminate the Contract and the Client shall not be relieved of any obligation to accept or pay for the Goods by reason of any delay in delivery.
  • 7.3. Where the Contract involves more than one delivery these conditions apply to each and every delivery.
  • 7.4. Delivery will be deemed to have been effected and risk in Goods passes to the Client on the earlier of:
    • 7.4.1. delivery of the Goods by the Company to the Client’s delivery location (as notified by the Client to the Company);
    • 7.4.2. collection of the Goods by the Client; or
    • 7.4.3. supply of the Goods by the Company to a carrier for delivery to the Client,
      whether or not the Goods have been paid for in full.
  • 7.5. The Company will use reasonable endeavours to handle the Goods safely and with all due care. However, the Company will not be responsible for any loss or damage to the Goods upon delivery to the Client’s delivery location or collection of the Goods by the Client from the Company premises.
  • 7.6. The Client:
    • 7.6.1. releases the Company from, and agrees that the Company is not liable for, liability or loss arising from, and costs incurred in connection with any damage caused to those premises and/or injury or death suffered by a person or persons, arising as a result of the delivery by the Company or its agents of the Goods to those premises and except for (and to the extent that) such damage, injury or death arises out of the negligence of the Company or its agents; and
    • 7.6.2. indemnifies the Company against any and all damage, loss, expenses, costs incurred by the Company and arising as a result of a claim, action or proceeding against the Company by a third party in respect of damage caused to those premises and/or injury or death suffered by a person or persons arising as a result of the delivery by the Company or its agents of the Goods to those premises and except for (and to the extent that) such damage, injury or death arises out of the negligence of the Company or its agents.
  • 7.7. If for any reason the Client is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Company shall, if its storage facilities permit, store the Goods until the actual delivery and the Client shall:
    • 7.7.1. be liable to the Company for the reasonable cost (including insurance) of storing the Goods; and
    • 7.7.2. subject to the Company taking reasonable steps to prevent damage to the Goods, releases the Company from liability in regards to any damage or deterioration in the condition of the Goods as a result of their storage.
  • 7.8. This provision shall be in addition to, not in substitution of, any other payment or damages for which the Client may become liable in respect of their failure to take delivery at the appropriate date.


8 CLIENT WARRANTY

  • 8.1. If the Company or its employees, contractors or agents must attend at the Client’s premises to undertake the Services, the Client warrants and agrees that its premises is at all times a safe working environment.
  • 8.2. The Client must indemnify the Company for any loss or damage that the Company suffers as a result of the Client’s premises being unsafe, save and except loss or damage caused by a negligent act or omission on the part of the Company or its employees, contractors or agents.


9 CLAIMS

  • 9.1. To the extent permitted by law, the Company shall not be liable for any direct or consequential loss or damage attributable to defects in the Goods or Services nor in respect of conditions or warranties whether expressed or implied by statute or at common law which have not been confirmed by the Company in writing or are not expressly contained in the Contract.
  • 9.2. The Client shall indemnify the Company against all proceedings, claims, demands, costs and expenses made against or incurred by the Company in respect of the Goods sold hereunder for any installation thereof by the Client or the Client’s employees, agents or representatives.
  • 9.3. Any complaints of damage or short delivery or loss in transit must be made to the Company within fourteen (14) days of delivery (as deemed in accordance with clause 7.4). The Company shall have the option of repairing, replacing or crediting the value of the Goods in respect of which any such complaint is made and proven thereby fully discharging any and all legal liability to the Client.


10 GUARANTEE

  • 10.1. In the event any Goods and/or Services supplied by the Company under the Contract are defective, the liability of the Company (if any) shall (to the extent permitted by law) be limited to:
    • 10.1.1. a period of 12 calendar months from the date of supply of the Goods and/or Services, provided that the Client notifies the Company in writing of the defect within that period; and
    • 10.1.2. the Customer’s rights under the Australian Consumer Law
  • 10.2. To the extent permitted by law, the Company’s liability under any condition or warranty which cannot legally be excluded is limited to:

  • for Goods:
    • 10.2.1. the replacement of the Goods;
    • 10.2.2. the payment of the cost of replacing the Goods; or
    • 10.2.3. the payment of the cost of having the Goods repaired (if applicable); and

  • for Services:
    • 10.2.4. the supplying of the Services again; or
    • 10.2.5. the payment of the cost of having the Services supplied again.

  • 10.3. The Client shall, as soon as practicable after discovering any such defect in regards to the Goods, return the defective Goods or parts thereof to the Company unless it has been agreed between the parties that the necessary replacement or repair shall be carried out by the Company on the Client’s premises or on the premises where the Goods have been installed.
  • 10.4. The Company shall be under no liability to the Client in respect of defects in the Goods and/or Services supplied except as specified in this clause nor shall it be responsible for any personal injury or damage or loss of any kind attributable to defects in such Goods and/or Services but the Client will keep the Company indemnified against any such claim.
  • 10.5. Nothing in the Contract operates to exclude or restrict any right the Client has under any statute, including under the Australian Consumer Law, except to the extent permitted by that statute. The Company will comply with its obligations in respect of any such warranty, and any express warranty or guarantee given by the Company is in addition to those statutory warranties.


11 RETURNS
Goods returned for credit will be accepted at the sole discretion of the Company. Goods in original condition may be accepted for a maximum credit of 75% of the original net price of the Goods to the Client.

12 CANCELLED CONTRACT

  • 12.1. No cancellation of a Contract for the supply of Goods or Services or both may be made by the Client unless agreed to in writing by the Company.
  • 12.2. If the Client repudiates the Contract in force between the Company and the Client or ceases to perform its obligations under the Contract (including in respect of payment of the purchase price), the Client will be liable to the Company for any damage or loss suffered by the Company arising out of such repudiation or termination.
  • 12.3. Without limiting the generality of this clause, if Goods have been produced specifically for the Client, or are in the process of being so produced, and the Client repudiates the Contract, the Client must pay to the Company as liquidated damages the full Contract price and any costs incurred by the Company less the current scrap value of the Goods (such scrap value to be determined by the Company) acting reasonably.


13 FORCE MAJEURE
No liability will be accepted for any failure of or delay in performance when performance is wholly or partially delayed, hindered or prevented by any circumstances which are not within the Company’s immediate control, including but not limited to: strikes, lockouts, labour disputes of any kind, fires, accidents, breakdown of part, delay of transport, unavailability of materials, war hostilities or any local or national emergencies, compliance with any order or request of government or other public authority or force majeure of any kind.

14 MISCELLANEOUS

  • 14.1. The Contract constitutes the sole and entire agreement between the Client and the Company in relation to the subject matter it deals with and contains all of the representations, warranties, undertakings and agreements of and between the parties.
  • 14.2. The Client accepts that it relies on only those matters expressly set out in the Contract and these Terms and Conditions as they supersede all prior negotiations, contracts, arrangements or understandings with respect to the subject matter dealt with in the Contract.
  • 14.3. The Company shall have all rights under statute, at common law and in equity in addition to these Terms and Conditions.
  • 14.4. The law of the state of Western Australia is the proper law governing these Terms and Conditions and the parties accept and submit to the exclusive jurisdiction of the courts of that state.
  • 14.5. A party waives a right under these Terms and Conditions only if it does so in writing. A party does not waive a right simply because it fails to exercise the right, delays exercising the right or only exercises part of the right. A waiver of one breach of a term of these Terms and Conditions does not operate as a waiver of another breach of the same term or any other term.
  • 14.6. If a provision in these Terms and Conditions is wholly or partly invalid or unenforceable, that provision or part thereof must be treated as deleted without effect on the validity or enforceability of the remaining provisions.