Terms of sale of Goods and provision of Services –
1.1 These terms of sale of goods and provision of services (“Terms”) govern each quotation, purchase order and any other agreements (“Contract”) formed on acceptance of an order placed by a customer (“Customer”) with Elevate Ergonomics ABN 15619408043 (“Supplier”) for the supply of goods (“Goods”) and/or provision of services (“Services”).
The Customer accepts and agrees to be bound by these Terms when:
- The Customer buys any Goods from the Supplier or using any website operated by the Supplier including https://www.elevateergonomics.com/ (collectively “Website”);
- The Customer issues a purchase order to the Supplier and Supplier accepts it;
- The Supplier submits any price list, quote, proposal or offer (“Offer”) to supply any Goods and/or provide any Services to the Customer specified in the Offer, which includes or attaches these Terms and the Customer issues an order, purchase order, a letter of acceptance or the like in any form whatsoever (“Order”) or if it acts in any other manner consistent with accepting the Offer;
- The parties sign these Terms.
1.2 The Contract constitutes the entire agreement between the Customer and Supplier and supersedes all previous communications, whether oral or written, relating to the subject matter of the Contract. For the avoidance of doubt, any terms or conditions contained in, issued with or printed on any Order, letter of acceptance or the like issued by the Customer do not form part of the Contract and are of no effect whatsoever.
2. General obligations
2.1 The Supplier must supply the Goods and/or provide any Services in accordance with the requirements of the Contract.
2.2 The Customer must pay the price specified in the Offer or Website in respect the Goods and/or Services (“Price”). Offer(s) are valid for thirty (30) days only and are subject to price changes unless deposit has been paid as per clause 2.3 of these Terms. An Offer is an invitation to supply and/or install products, not to be construed as an obligation to sell and the Supplier reserves the right to withdraw the quotation at any time. Unless otherwise specified in the Offer or Website all prices are for the goods located at the Supplier’s warehouse in Sydney, NSW. All prices will be quoted exclusively of GST however all goods will be sold on a ‘plus GST basis’. These prices do not include freight costs for part or whole shipment to any destination. Unless otherwise stated, in the event of any increase in associated rates or the price of goods quoted to the Supplier by its suppliers before acceptance of an order or prior to delivery of the goods to the Customer, then the cost to the Supplier entailed by such increases shall be added to and form part of the purchase price payable by the Customer accordingly.
2.3 Unless the Customer pays full Price at the time of purchase or otherwise is specified in the Offer or Website, upon receipt of an Order, the Supplier will issue the Customer with an invoice for fifty percent (50%) of the Price specified in the Supplier’s invoice as prepayment for the Goods and the Customer must pay such invoice within seven (7) days from the date of the invoice. For the avoidance of doubt, the Supplier will not process the Order unless prepayment is received by the Supplier in accordance with this clause 2.3. The Supplier will issue the Customer with an invoice for the reminder of the Price _____7____days prior to delivery of the Goods to the agreed address and the Customer must pay such invoice prior to the delivery and within seven (7) days of the date of invoice. The Price is exclusive of GST. The Customer must reimburse the Supplier for the amount of any GST payable in respect of any supply made under or in connection with the Contract, provided that the Supplier provides the Customer with a tax invoice in respect of that supply.
2.4 Order Cancellation: no Order once accepted by the Supplier may be cancelled or varied by the Customer, except with the written consent of the Supplier and on such terms as the Supplier may require, including full reimbursement to the Supplier.
2.5 Return of goods: To the fullest extent permitted by law, the goods cannot be returned for credit, all sales are final. Non-standard (customised) goods are not returnable under any circumstance.
2.6 Specification: The goods are sold on “AS IS” basis, all photographs, weights, illustrations, specifications and measurements in relation to the goods are approximate only and deviations therefore shall not vitiate the contract or be made the basis of any claim against the Supplier.
2.7 Sample goods or loans: at the discretion of the Supplier goods may be supplied to the Customer for a fixed predetermined period of time (“Rental Period”) on the following basis:
- trial and evaluation; or
- temporary loan; or
- stocking a Customer’s showroom;
These goods always remain the property of the Supplier unless such goods are subsequently purchased and fully paid for. Whilst in the Customer’s care, the Customer agrees to take full responsibility for the goods supplied. Damages and losses must be paid for by the Customer and all costs related to delivery and return of the goods including freight, handling and insurance. Goods not returned on or before the end date of the Rental Period are deemed to be sold and must be paid for by the Customer accordingly. If the Customer fails to pay for the goods, the Supplier shall have all rights and remedies as may be available to it and may enter upon any premises where the goods are situated and take possession of such goods, notwithstanding that fixtures and fittings may be attached thereto.
3. Delivery, testing and installation
3.1 Unless otherwise specified by the Supplier, the Supplier shall deliver the Goods to the Supplier’s warehouse in Sydney, NSW. The Supplier may however elect to deliver goods at an agreed price to the address nominated by the Customer or to the Customer’s carrier. All deliveries to the Customer will be provided as an authority to leave unless otherwise stated by the Customer in the delivery notes at checkout. If the Customer does not provide an authority to leave and an attempt to deliver is made where the Customer cannot accept the delivery, an additional delivery fee and tailgate unload fee (if applicable for bulky/oversized orders) will be charged to re-deliver the Goods to the Customer. For all deliveries with an authority to leave, the Customer will be waiving all rights to claim any loss or damages from Elevate Ergonomics Pty Ltd or the transport provider.
3.2 The Customer shall inspect the Goods immediately on the arrival thereof and shall within twenty-four (24) hours from the receipt of Goods give notice in writing to the Supplier of any matter or thing by reason whereof he may allege that the Goods are not in accordance to the Contract. If the Customer fails to give such notice, the Goods shall be deemed to be in all respects in accordance with the Contract and the Customer shall be bound to accept and pay for the same accordingly.
3.3 All risks of loss of or damage to the Goods shall transfer to the Customer on such delivery, except if the Services involve installation of the Goods, the Goods shall be at the Supplier’s risk during such installation.
3.4 The Supplier shall use best endeavours to deliver the Goods or provide the Services by the date(s) specified in the Contract. Such date(s) shall be extended by the duration of any delay caused by any event beyond the reasonable control of the Supplier (including any delay in the supply of the Goods by the manufacturer of the Goods, delays by the Customer or other contractors and breakdown of the equipment not in control of the Supplier).
3.5 If the Customer does not take delivery of Goods at the agreed address or otherwise at the time for delivery as provided in the Contract, the Supplier shall be entitled on behalf of the Customer to put the Goods into storage at the Customer’s expense and the Supplier shall be deemed to have delivered such goods to the Customer on placing them into such storage.
3.6 The Supplier shall at its own expense carry out any tests on the Goods required by the Contract, or in the absence of such requirements, the Supplier may carry out its standard tests on the Goods. Any additional tests required by the Customer shall be at the Customer’s expense and risk.
3.7 If the Services involve installation of the Goods, the Customer shall, at its cost:
(a) permit the Supplier such access to the site (during normal business hours: Monday to Friday 7:00am-3.30pm) where the Goods are to be installed in a timely manner and shall take all reasonable measures to avoid interference with the work of the Supplier;
(b) provide all necessary facilities, including lighting and guarding of the Goods from the time of delivery until the time of completion of installation.
4.1 The Supplier warrants that the Goods and, if applicable, the Services (where the Price included installation of Goods by the Supplier) will comply with the requirements of the Contract during ten (10) years from the delivery of the Goods or completion of the Services. Electrical components including motors, control box and hand controller will comply with the requirements of the Contract during five (5) years from the delivery of the Goods or completion of the Services.
4.2 If the Supplier is in breach of clause 4.1 and the Customer gives the Supplier a notice of such breach within seven (7) days after the date on which the breach became apparent (including reasonable particulars of the breach and a reasonable opportunity to investigate it), the Supplier shall, at its cost and at its option, repair or replace the relevant Goods (any replaced Goods shall become the property of the Supplier) or, if applicable, re-supply Services.
For the avoidance of doubt, if under the Contract the Supplier has provided the Customer with Goods only (no Services), the warranty in clause 4.1 will apply to Goods only and will not apply to installation. If under the Contract the Supplier supplied and installed the Goods, then the warranty will cover the replacement of Goods and also, at the Supplier’s option, re-supply of Services or payment of reasonable installation costs.
4.3 For the avoidance of doubt, the Supplier’s obligations under clause 4.2 shall not extend to:
(a) any failure caused by fair wear and tear or designs or specifications provided or used by the Customer;
(b) any failure caused by negligence or failure by the Customer or any person (other than the Supplier) to comply with the Supplier’s instructions or documentation and good engineering practice in respect of installation, commissioning, storage, operation or maintenance of the Goods;
(c) any failure caused by repairs or modifications to the Goods which have been made without the Supplier’s prior written approval.
(d) any costs or expenses (including any costs incurred by the Customer or third parties during immobilisation or transportation of any equipment), other than its own costs of repair or replacement.
4.4 The Supplier’s obligations in this clause 4 are in place of and exclude to the fullest extent permitted by law any implied warranties and conditions, including any implied warranties of fitness for purpose.
5.1 If the Customer wishes to carry out any variation to the Order, it shall give notice to the Supplier advising of the proposed variation. As soon as practicable after receipt of the notice referred to in clause 5.1, the Supplier shall advise the Customer whether it is possible to carry out the variation, its price for carrying out the variation and impact on the date for delivery or completion. If applicable, the Supplier shall use the rates specified in the Contract in pricing any variation.
5.2 Once the Supplier and the Customer agree in writing on the scope, price and change to the date for delivery or completion, the Supplier shall carry out the variation in accordance with such agreement and the Contract
6. Limitation of Liability
6.1 Notwithstanding any other provision of the Contract, the liability of the Supplier to the Customer, whether arising under or in connection with the Contract or the performance or non-performance thereof or anything incidental thereto, and whether for breach or repudiation of contract, by way of indemnity, by statute (to the extent that it is possible to exclude and limit such liability), in tort (arising in respect of negligence, bailment or otherwise), or on any other basis in law or equity is hereby limited and excluded as follows:
(a) the Supplier shall have no liability whatsoever to the Customer for loss of use, production, profit, revenue, business, data, contract or anticipated benefit or saving, or for any delay or for any financing costs or increase in operating costs or any economic loss or financial loss or cost (whether similar to the foregoing or not, and whether suffered by the Customer itself or a result of a claim by a third party) or for any special, indirect or consequential loss or damage;
(b) the total aggregate liability of the Supplier to the Customer is limited to the amount equal to the Price of the relevant Order.
This clause survives expiry or termination of the Contract for any reason.
7. Termination for breach and insolvency
7.1 Without limiting any other rights it may have, a party (the “Notifying Party”) may give a written notice to the other party (the “Defaulting Party”) in the event that the Defaulting Party:
- commits a material breach of the Contract (being a breach going to the root of the Contract); or
- does not pay any amount owed under the Contract when it is due,
(each a “Breach”).
Such notice must state (i) the alleged Breach, (ii) the period in which the defaulting party is required to remedy that Breach (such period shall be no less than seven (7) days in respect of non-payment and thirty (30) days for any other breach).
7.2 If the Defaulting Party fails to remedy the Breach within the required period, the Notifying Party may, immediately by written notice to the Defaulting Party, terminate the Contract and recover damages from the Defaulting Party.
7.3 Without prejudice to the rights in this clause 7, if the Customer does not pay to the Supplier any amount owed under the Contract when it is due, the Supplier may suspend, at the Customer’s cost, its performance of the Contract until the payment is made or the Contract is terminated under clause 7.2 or 7.4, whichever is the earlier.
7.4 If either party is (or states that it is) insolvent or likely to become insolvent or is subject to an application or an order for the appointment of a liquidator or administrator, is subject to any form of external administration, enters a deed of company arrangement with its creditors or is wound up or likely to be wound up, the other party may at any time by written notice terminate the Contract immediately.
8.1 If any provision or part of any provision of the Contract is invalid, illegal or unenforceable, such provision or part thereof shall be severed from the Contract and the remainder shall continue in full force and effect.
8.2 Either party must not assign any of its rights or transfer any of its liabilities under the Contract to any person without the other party’s prior written consent, which shall not be unreasonably withheld.
8.3. Title in the Goods shall not pass to the Customer until the Supplier has been paid the Price for them in full.
8.4 By taking delivery of Goods, the Customer agrees that a security agreement within the meaning of the Personal Property Securities Act 2009 (“PPSA”) covers the Goods as set out in this clause. The Customer must, if requested by the Supplier, effect (including by registration under the PPSA) a continuing security interest in the Supplier’s favour in any Goods that are disposed of by the Customer on credit terms. The following provisions of the PPSA do not apply – section 95 (notice of removal of accession, to the extent that it otherwise requires the Supplier to give a notice to the Customer), section 130 (notice of disposal, to the extent that it otherwise requires the Supplier to give a notice to the Customer), section 132(3)(d) (statement of account), section 132(4) (statement of account if no disposal), section 135(1)(a) (notice of retention, to the extent that it otherwise requires the Supplier to give a notice to the Customer), and section 143 (reinstatement). The Customer waives its right under section 157 of the PPSA to receive a notice in relation to any registration event in connection with any collateral in the Goods.
8.5 These Terms and the Contract shall be governed by the law of New South Wales, Australia and the parties agree to submit to the jurisdiction of the courts of New South Wales and any courts having appellate jurisdiction from them. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the supply of any Goods pursuant to the Contract.
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