BUSINESS TERMS
These Business Terms, together with any Purchase Order (defined in clause 1), set out the agreement (Agreement) under the terms of which BLW MARINE MANAGEMENT PTY LTD ABN 12 620 343 179
(the Company) provides Products and/or Services (defined in clause 2) to you or the company which you represent (the Client).
Purchase Order, THIS AGREEMENT
These Business Terms will apply to all the Client’s dealings with the Company, including being incorporated in all agreements, quotations, invoices or orders under which the Company is to provide products and/or services to the Client (each a ‘Purchase Order’) together with any additional terms included in such Purchase Order (provided such additional terms are recorded in writing).
The Client will be taken to have accepted this Agreement if the Client accepts a Purchase Order, or if the Client orders, accepts or pays for any products and/or services provided by the Company after receiving or becoming aware of this Agreement.
In the event of any inconsistency between these Business Terms and any Purchase Order, the clauses of these Business Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Purchase Order) will prevail over these Business Terms to the extent of any inconsistency.
The Company may update any part of the Business Terms at any time without notice to the Client. The Client continuing to order, accept or pay for any products and/or services provided by the Company following such an update will represent an agreement by the Client to be bound by the Business Terms as amended. The Client is encouraged to check the date at the top of the Business Terms to see when the Company last updated the Business Terms.
The Client is responsible for confirming that the Purchase Order accurately specifies (if applicable):
the quantity and specifications of the Products and/or Services required; and
the agreed Fees and any other rates.
PRODUCTS AND SERVICES
In consideration for the payment of the fees set out in the Purchase Order (Fees), the Company will provide the Client with goods set out in a Purchase Order (Products) and/or services set out in a Purchase Order (Services).
Where the context permits, the terms ‘Products’ and ‘Services’ shall be interchangeable when used in this Agreement.
Unless otherwise agreed, the Company may, in its discretion:
not commence work on any Services until the Client has paid any Fees payable in respect of such Services; and
withhold delivery of Products until the Client has paid an invoice in respect of such Products.
CLIENT OBLIGATIONS
(General) The Client must provide the Company with all documentation, information and assistance reasonably required for the Company to perform the Services.
(Liaison) The Client agrees to liaise with the Company as it reasonably requests for the purpose of enabling the Company to provide the Services.
(Instructions) The Client agrees to use the Products strictly in accordance with the manufacturer’s instructions (Instructions). The Client acknowledges that failure to use the Products in accordance with the Instructions is likely to result in the Products not functioning properly or meeting the Specifications. The Client agrees that the Company will not be liable for any loss or damage arising out of the Client’s failure to use the Products in accordance with the Instructions and will indemnify the Company for such loss or damage.
(Permits) If applicable, the Client warrants that they hold valid licences and are otherwise permitted to install any products purchased by the Client under a Purchase Order (Permits). The Company reserves the right to request proof of such Permits, cancel any Purchase Order in the absence of such Permits and charge administration fees if orders are placed for Products where the Client does not hold the relevant licence.
(Compliance with Laws) The Client is responsible for complying with all applicable Laws, where ‘Laws’ means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Client receives the Products and/or the Company provides the Services.
CLIENT SUPPLIED GOODS AND EXISTING CONSTRUCTION
If the Client uses the Products in conjunction with any materials and/or goods supplied by the Client, for example where the Client attaches the Products to such materials and/or goods:
the Client accepts the risk of defects or deficiencies in such goods and/or materials;
the Company will not be required to investigate the suitability, quality or fitness for purpose of existing or proposed materials and/or goods; and
the Client will be required to pay the Additional Work Rate if it requests that the Company correct any defects or issues with such materials and/or goods.
SPECIFICATIONS AND QUALITY
The Company will use reasonable commercial efforts to ensure Products supplied to the Client under this agreement meet the Specifications set out (Specifications), however:
the Client acknowledges that the numerical values included in the Specifications depend on a variety of factors beyond the Company’s control and are provided as a guide only; and
the Company cannot guarantee that the Products will be consistent with the Specifications and will not be liable for any failure of the Products to meet the Specifications.
CHANGES
The Client must pay additional service fees for changes to Services requested by the Client which are outside the scope set out in the relevant Purchase Order (Changes) at the Additional Work Rate.
Unless otherwise agreed in writing, the Company may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
PAYMENT
FEES
The Client must pay to the Company the Fees in the amounts, at the times and using the Fee Payment Method set out in the Purchase Order or as otherwise agreed in writing.
INVOICES
Unless otherwise agreed in the Purchase Order:
if the Company issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.
EXPENSES
Unless otherwise agreed in writing:
the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by the Company in connection with a Purchase Order; and
any third party costs incurred by the Company in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Purchase Order.
GST
Unless otherwise indicated, amounts stated in a Purchase Order do not include GST. In relation to any GST payable for a taxable supply by the Company, the Client must pay the GST subject to the Company providing a tax invoice.
CARD SURCHARGES
The Company reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
LATE PAYMENT AND DEBT RECOVERY
If the Client fails to pay any amounts due to the Company under an invoice by the specified due date, the Company retains the right, without limiting any other rights under this Agreement, to charge the Client interest at a rate of 10% per annum on the outstanding amount. However, before applying this interest, the Company will provide the Client with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Company.
PRICING
The Client acknowledges that despite the Company’s reasonable precautions, Products may be listed at an incorrect price, or with incorrect availability and/or other information, due to typographical errors and/or oversight. In such circumstances, the Company reserves the right to substitute the Products with a comparative product, if agreed by the Client or cancel Purchase Order, even if the Purchase Order has been paid for and previously accepted by the Company.
If the Company cancels a Purchase Order in accordance with 8(a) the Company will, as soon as practicable, contact the Client and issue a refund for any payment the Client has made for the cancelled order.
The Company will endeavour to make any refund under this clause using the same payment method as the payment method used by the Client during the original purchase, however may vary this method at its discretion.
PRODUCT INFORMATION
The Company endeavours to ensure that the descriptions and specifications in relation to the Products on its website or in catalogues are accurate. However, photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, descriptive literature or a catalogue are based on information provided by manufacturers and suppliers and, as such the Company does not guarantee that those descriptions and specification are accurate or free from errors or omissions. The Company reserves the right to make any necessary corrections to the descriptions or specifications without notice.
TITLE AND RISK
Until the price of Products is paid in full, title in those Products is retained by the Company.
Risk in the Products will pass to the Client on delivery or on completion of purchase.
If the Client fails to take the Products after the Client has completed the purchase, the Company may, at its option, keep or resell the Products provided that we provide the Client with a full refund (excluding any credit card surcharges or other transaction fees).
If the Client does not pay for any Products on the due date for payment, the Client authorises the Company, its employees and agents to enter any premises occupied by the Client or any other place where the Products are located and use reasonable force to retake possession of the Products without liability for trespass or damage.
The Company may at its option keep or resell Products retaken from the Client.
If the Client sells Products or sells items into which Products are incorporated before payment in full to the Company, the Client acknowledges that such sale is made by the Client as bailee for and on behalf of the Company, to hold the proceeds of sale on trust for the Company, in an account in the name of the Company, and must pay that amount to the Company on demand.
DELIVERY
COST AND OBLIGATIONS
Unless otherwise indicated, amounts stated in Purchase Orders or on the Company’s website do not include delivery.
For Products to be delivered, the Company will charge the Client for delivery (notwithstanding that it may not have previously done so).
Delivery is to the delivery point specifically accepted by the Company.
If the Company is unable to complete the delivery within the agreed time schedule due to the Client’s absence or other fault of the Client, the Client will be liable for all charges and costs incurred, including but not limited to warehousing, transportation and redelivery.
If the Client organises delivery independently of the Company, the Company shall not be held liable for non-delivery, lateness of delivery or loss or damage of Products during transit.
The Company may, at its discretion, deliver the Products to the Client in any number of instalments.
DAMAGE IN TRANSIT
Unless the Company is delivering the Products, the Company shall not be liable for loss of or damage to Products in transit and the Client must make all claims for such loss or damage against the carrier. The Company encourages the Client to take out insurance to protect itself for loss of or damage to Products in transit.
DEFECTIVE PRODUCTS AND ACCEPTANCE
DEFECTIVE PRODUCTS
Where the Client considers that any Products provided by the Company are defective, the Client must, within a reasonable time of receiving the Products, inform the Company of that fact in writing.
CLIENT’S OBLIGATIONS
Where Products are the subject of a notice under clause 1:
the Client must, at the Company’s option:
leave the Products in the state and condition in which they were delivered until such time as the Company or its duly authorised agent has inspected the Products; or
send the Company photographs, descriptions or other material evidencing the defects in the Products at the Company’s email address specified in the Purchase Order;
the Company will inspect the Products and/or evidence of defects in the Products within a reasonable time after notification by the Client; and
if paragraph 2(a) is not complied with, the Client will be taken to have accepted the Products and the Company will be entitled to the price for the Products set out in any Purchase Order.
CALL-OUT FEE
The Company reserves the right to charge the Client a call out fee, if upon inspection of the Products in accordance with clause 2(a)(i), the Company determines that the Products are not defective in accordance with clause 12.5.
REPAIRS OR REPLACEMENTS OF DEFECTIVE GOODS
Subject to clause 16, if, upon inspection, in the reasonable opinion of the Company:
the Products are defective; and
the Products were not damaged by the Client and/or the Client did not fail to take reasonable steps to prevent the Products from becoming damaged; or
the Products are otherwise not in conformity with the Purchase Order, then at the discretion of the Client, the Company will:
replace the Products or supply the equivalent of the Products;
repair the Products;
pay the Client the cost of replacing the Products or acquiring equivalent Products; or
pay the Client the cost of having the Products repaired.
GOODS CONSIDERED NOT TO BE DEFECTIVE
If, upon inspection, in the reasonable opinion of the Company,
the Products are not defective; or
the Products are defective due to an act or omission of the Client, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care by the Client; and
the Products are otherwise in conformity with the Purchase Order, the Company will refuse the Client’s return, the Client will be taken to have accepted the Products and the Company will be entitled to the price for the Products set out in any Purchase Order.
ACCEPTANCE
Except where notice has been given in accordance with clause 1, acceptance of the Products is deemed for all purposes to have taken place:
when the Client makes known to the Company that it has accepted the Products;
when the Client, after delivery of the Products, does any act in relation to them which is inconsistent with the Company’s ownership of the Products; or
upon the expiry of seven days from the date of delivery, whichever first occurs.
WEAR AND TEAR
Products that have been subject to regular wear and tear will not be considered to be defective.
THIRD PARTY GOODS AND SERVICES
If the Company is required to acquire goods or services supplied by a third party, the Client may be subject to the terms and conditions of that third party (‘Third Party Terms’).
The Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or the Company acquires as part of providing the goods or services and the Company will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
PERSONAL PROPERTY SECURITIES
The Client grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, in relation to any personal property, including any debts owed to the Client, in favour of the Company to secure the performance of its liabilities and obligations under this Agreement.
If requested by the Company the Client must immediately sign any documents, provide all necessary information and do anything else required by the Company to ensure that the security interest created in the Company’s favour is a perfected security interest.
The Client must not grant any other security interest in favour of any party until the Company has perfected its security interest created under these Terms.
The Client must not do or permit anything to be done that may result in the security interest granted to the Company ranking in priority behind any other security interest.
The Client acknowledges that these Terms constitute a security agreement for purposes of the PPSA and the Client will do all things necessary to enable a security interest to be registered under the PPSA, and will comply with all requirements of the PPSA.
To the fullest extent permitted by the PPSA, the Client agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.
The Client hereby waives any rights the Client may otherwise have to:
receive any notices or statements the Client would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
object to a proposal of the Client to purchase or retain any collateral under sections 130 and 135 of the PPSA; and
receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
For the purpose of this clause and other relevant clauses in this Agreement, “PPSA” means the Personal Property Securities Act 2009 (Cth) and “PPS Register” means the register established and maintained under that Act. The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.
CONFIDENTIALITY
Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any confidential information disclosed to it by the other party without its prior written consent.
This clause 15 does not apply to:
information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
information required to be disclosed by any law; or
information disclosed by the Company to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
INTELLECTUAL PROPERTY
CLIENT CONTENT
The Client grants to the Company (and its subcontractors, employees and agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any part of the Services.
The Client:
warrants that the Company’s use of Client Content as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and
will indemnify the Company from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.
DEVELOPED IP
All Developed IP will be solely and exclusively owned by the Company.
THE COMPANY WORK IP
The Company grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use the Company IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or the Deliverables.
Unless otherwise agreed in writing by the Company or in this clause 3, the Client will not acquire Intellectual Property Rights in any the Company IP under this Agreement or as part of receiving the Services.
DEFINITIONS
For the purposes of this clause 16:
“Client Content” means any Material supplied by the Client to the Company under or in connection with this Agreement, including any Intellectual Property Rights attaching to that Material.
“Developed IP” means any Products and any other Material produced by the Company in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material or the Deliverables.
“Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this Agreement.
“The Company IP” means all Material owned or licensed by the Company that is not Developed IP and any Intellectual Property Rights attaching to that Material.
“Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.
WARRANTIES
To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
LIABILITY
liability
To the maximum extent permitted by law and subject to clause 1(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to the Company under the most recent Purchase Order.
CONSEQUENTIAL LOSS
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by the Company, except:
in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
SUBCONTRACTING
The Company may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
TERMINATION
TERMINATION FOR CONVENIENCE
Either party may end this agreement for no reason, by providing notice to the other party.
This agreement will end 10 Business Days after the day the notice is sent (the End Date).
On the End Date, the Company will provide an invoice to the Client for:
any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
any pre-approved third party costs the Company has incurred on the Client’s behalf up to the End Date;
(together, the Outstanding Amounts)
The Client will pay the Outstanding Amounts to the Company on the End Date, unless otherwise agreed in a written payment plan between the parties.
Once the Outstanding Amounts have been paid, the Company will hand over any completed deliverables.
If the Company terminates this agreement pursuant to this clause, the Company will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.
termination for breach
If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
After the Rectification Period, the Notifying Party will:
if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
Any disputes regarding termination under this clause must be dealt with in accordance with clause 21. The indemnities, warranties and liability caps in clause 18 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 1(c)(iii) will not limit or otherwise effect the Service Provider’s rights under this agreement, at law or otherwise in equity; the Service Provider’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.
other consequences for termination
If this agreement ends, in addition to the specific consequences set out in clause 20.1 and 20.2 or (as applicable), the parties will:
return all property and Confidential Information to the other party;
comply with all obligations that are by their nature intended to survive the end of this agreement; and
stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 20.
SURVIVAL
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
DISPUTE RESOLUTION
The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.
If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
The parties acknowledge that compliance with this clause 21 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
in the case of applications for urgent interlocutory relief; or
a breach by another party of this clause 21.
FORCE MAJEURE
If a party becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to an event beyond its reasonable control (Force Majeure), that party must give to the other party prompt written notice of:
reasonable details of the Force Majeure; and
so far as is known, the probable extent to which that party will be unable to perform or be delayed in performing its obligation.
Subject to compliance with clause 22(a), the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.
The affected party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.
NOTICES
A notice or other communication to a party under this agreement must be:
in writing and in English; and
delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond for the purposes of the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
24 hours after the email was sent; or
when replied to by the other party,
whichever is earlier.
GENERAL
GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
BUSINESS DAYS
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties.
WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
INTERPRETATION
(singular and plural) words in the singular includes the plural (and vice versa);
(gender) words indicating a gender includes the corresponding words of any other gender;
(defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(headings) headings and words in bold type are for convenience only and do not affect interpretation;
(includes) the word “includes” and similar words in any form is not a word of limitation;
(adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.