Terms and conditions
(1) The meaning of some words used in these terms and conditions
we, us, our or EHS is a reference to Yaander Pty Ltd (ACN 165 674 528) trading as Essential Heights Safety.
you or your is a reference to the person to whom we are providing the Goods or Services and who is required to pay for the Goods or Services we provide.
Additional Charge means fees or charges for additional work performed at your request or reasonably required as a result of the your conduct, calculated in accordance with the our then current prices; and expenses incurred by us, at your request or reasonably required as a result of the your conduct.
Goods means any goods supplied by us
Materials means any materials, goods, parts or items we need to buy necessarily in order to perform the Services.
Parties is a reference to both us and you.
Purchase Order means a Purchase Order or Order for Goods and/or Services placed by you with us.
Quote means a written description of the Goods or Services to be provided, an estimate of our charges for the performance of the required work and an estimate of the time frame for the performance of the work.
Premises means the place where we will provide the Services.
Services means the services, if any, performed by EHS in respect of the goods supplied by us to you. The precise Services we will be providing to you will stated in the Purchase Order and as we agree from time to time.
- (a) These terms and conditions apply to all transactions between EHS and you relating to the provision of Goods and Services. These terms and conditions take precedence over terms and conditions contained in any document or yours or elsewhere.
- (b) The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
- (c) We may amend any details in a Purchase Order by notice in writing to you. Such amended details supersede any relevant prior detail in dealing between the parties
- (a) We will provide you with a quote that is valid for 30 days from the date of issue.
- (b) Quotes are based on the cost of materials available at the time of preparation of the Quote and assume the timely supply by you of necessary material, instructions and access to the site.
- (c) Following provision of a Quote to you, we are not obliged to commence work until the Quote has been accepted by the you. This occurs by you providing a Purchase Order and returning the form to us.
- (d) We reserve the right to amend any Quote before the Purchase Order has been completed to take into account any rise or fall in the cost of completing the Purchase Order. We will notify you of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these terms and conditions.
- (e) An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon us.
(4) Purchase Orders
- (a) Every Order by you for the provision of Goods or Services must be submitted in writing and via a Purchase Order (unless otherwise agreed).
- (b) A Purchase Order will only be considered to be placed by you if the Purchase Order clearly identifies the Goods or Services ordered and our Quote. Any costs incurred by us in reliance on incorrect or inadequate information provided by you in a Purchase Order may result in the imposition of an Additional Charge.
- (c) Purchase Orders must be signed by an authorised representative and must specify the required date of delivery or installation
- (d) Placement of a Purchase Order by you signifies acceptance by you of these and terms and conditions and the most recent Quote provided by the us relating to that Purchase Order.
- (e) We may in our absolute discretion refuse to provide Goods or Services where:
- (i) Goods are unavailable for any reason whatsoever;
- (ii) credit limits cannot be agreed upon or have been exceeded; or
- (iii) payment for Goods or Services previously provided to you or any related corporation to you or to any other party who is, in the reasonable opinion of us, associated with you under the same or another supply contract, has not been received by you.
- (f) A Purchase Order cannot be cancelled without the prior written consent of us. Where a Purchase Order is cancelled, you indemnify us against any Losses incurred by the us as a result of the cancellation. This includes, but is not limited to, loss of profit from other purchase orders foregone as a result of the scheduling of the Purchase Order which is subsequently cancelled.
- (a) You may request that your Purchase Order be varied by providing a request in writing to the us. A request for a variation must be agreed to in writing by us in order to have effect.
- (b) If you wish vary your requirements after a Quote has been prepared by us or after the placement of a Purchase Order, we reserve the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by us in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.
- (c) We have an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.
(6) Invoicing and Payment
Any payment claim we make to you is made under the Building and Construction Industry Security of Payment Act 2002.
Payment for our Goods and/or Services is normally made in two ways, either:
(7) Additional Charges
- (a) We may require you to pay Additional Charges in respect of Costs incurred by us as a result of reliance on inadequate or incorrect information or material provided by you or information or material supplied later than required by us in order for it to provide the Goods or Services within the specified time frame (if any).
- (b) The imposition of Additional Charges may also occur as a result of:
- (i) cancellation by you of a Purchase Order where cancellation results in Loss to the us;
- (ii) additional work required by the you or any other occurrence which causes us to incur costs in respect of the your Purchase Order additional to the quoted cost.
(8) Providing the Services
(9) Acceptance of Goods
- (a) If you fail to advise us in writing of any fault in Goods or failure of Goods to accord with the Purchase Order within 2 days of delivery, you are deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Purchase Order. Nothing in this paragraph affects your rights for any alleged failure of a guarantee under the Australian Consumer Law.
(10) Title and Risk
- (a) Risk in Goods passes to you immediately upon delivery.
- (b) Property and title in Goods supplied to you under these terms and conditions does not pass to the you until all money (including money owing in respect of other transactions between the us and the you) due and payable to the us by the you have been fully paid.
- (c) Where Goods are supplied by us to you without payment in full, you are:
- (i) a bailee of the Goods until property in them passes to you;
- (ii) irrevocably appoint us to be your attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the us with respect to the Goods under applicable law;
- (iii) must be able upon demand by us to separate and identify as belonging to us Goods supplied by the us from other goods which are held by you;
- (iv) must not allow any person to have or acquire any security interest in the Goods;
- (v) agrees that we may repossess the Goods if payment is not made within 30 days (or such longer time as we may, in its complete discretion, approve in writing) of the supply of the Goods; and
- (vi) You grant an irrevocable licence to us or its agent to enter your premises in order to recover possession of Goods pursuant to this paragraph. You indemnifies us for any damage to property or personal injury which occurs as a result of the us entering your premises.
- (d) Where Goods are supplied by us to you without payment in full of all moneys payable in respect of the Goods and any Services provided by us in respect of those Goods, and:
- You make a new object from the Goods, whether finished or not;
- You mix the Goods with other goods; or
- the Goods become part of other goods (New Goods),
- (e) You agree with us that the ownership of the New Goods immediately passes to us. You will hold the New Goods on trust for us until payment of all sums owing to us whether under these terms and conditions or any other contract have been made. We may require you to store the New Goods in a manner that clearly shows the ownership of us.
- (f) For the avoidance of doubt, under paragraph 9(d), the ownership of the New Goods passes to us at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
- (g) Despite paragraph 9(c), you may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:
- (i) where you are paid by a third party in respect of Goods including New Goods, you hold the whole of the proceeds of sale, less any GST, on trust for us in a separate account, until all amounts owned by you to us have been paid; or
- (ii) where you are not paid by a third party, you agrees to assign all of its rights against the third party to us upon us giving the you notice in writing to that effect and for the purpose of giving effect to that assignment you irrevocably appoints the us as its attorney.
- (h) Where Goods are supplied by the us to you without payment in full of all moneys payable in respect of the Goods and any Services provided by us in respect of those Goods, you acknowledges that the we have a right to register and perfect a personal property security interest.
- (i) If:
- (i) a PPS Law applies or commences to apply to these terms and conditions or any transaction contemplated by them, or we determines (based on legal advice) that this is the case; and
- (2) in the our opinion, the PPS Law: (A) does or will adversely affect our security position or obligations; or (B) enables or would enable our security position to be improved without adversely affecting you,
we may give notice to you requiring the you to do anything (including amending these terms and conditions execute any new Terms and Conditions) that in our opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 10(h)(ii)(A) or improve the security position as contemplated in paragraph 10(h)(ii)(B). You must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in our opinion our security position or obligations under or in connection with these terms and conditions has been or will be materially adversely affected, we may by further notice to you cancel these terms and conditions. If this occurs, you must pay to the us any money owed to the us by the you immediately.
(11) Default by you
- (a) Each of the following occurrences constitutes an event of default:
- (i) You breach or are alleged to have breached these terms and conditions for any reason (including, but not limited to, defaulting on any payment due under these terms and conditions) and fails to remedy that breach within 14 days of being given notice by us to do so;
- (ii) If you, being a natural person, commits an act of bankruptcy;
- (iii) If you, being a corporation, is subject to: (A) a petition being presented, a Purchase Order being made or a meeting being called to consider a resolution for you to be wound up, deregistered or dissolved; (B) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the your property and undertaking; (C) the entering of a scheme of arrangement (other than for the purpose of restructuring); and (D) any assignment for the benefit of creditors;
- (iv) You purport to assign its rights under these terms and conditions without our prior written consent; or
- (v) You cease or threaten to cease conduct of its business in the normal manner.
- (b) Where an event of default occurs, except where payment in full has been received by us, we may:
- (i) terminate this agreement;
- (ii) terminate any or all Purchase Orders and credit arrangements (if any) with you;
- (iii) refuse to deliver Goods or provide further Services;
- (iv) pursuant to clause 10(c), repossess and re-sell any Goods delivered to you, the payment for which has not been received; or
- (v) retain (where applicable) all money paid by you on account of Goods or Services or otherwise.
- (c) In addition to any action permitted to be taken by the us under paragraph 11(b), on the occurrence of an event of default all invoices will become immediately due and payable.
(12) Intellectual Property
- (a) You warrant that you own all Intellectual Property Rights pertaining to your Purchase Order for Goods or Services or has a licence to authorise us to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by you to us for the purposes of the Purchase Order. Further, you indemnify and agree to keep indemnified us against all Losses incurred by the us in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by you.
- (b) Unless specifically agreed in writing between the EHS and you, all Intellectual Property Rights in any works created by EHS on your behalf will vest in and remain the property of EHS.
- (c) Subject to payment of all invoices due in respect of the Goods or Services, we grant to you a perpetual, non-exclusive licence to use the works created or produced by us in connection with the provision of Goods or Services under these terms and conditions for the purposes contemplated by the Purchase Order.
(13) Agency and assignment
- (a) You agree that we may at any time appoint or engage an agent to perform an obligation of us arising out of or pursuant to these terms and conditions.
- (b) We have the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of us owed to you under these terms and conditions.
- (c) You are not to assign, or purport to assign, any of its obligations or rights under these terms of trade without our prior written consent.
In addition to the express rights of termination provided in these terms of trade, a party may terminate these terms of trade by giving 30 days written notice to the other party.
(15) Exclusion and limitation of liability
- (a) You expressly agree that use of the Goods and Services is at your risk. To the full extent allowed by law, our liability for breach of any term implied into these terms and conditions by any law is excluded.
- (b) All information, specifications and samples provided by us in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect your use of the Goods or Services will not entitle you to reject the Goods upon delivery, or to make any claim in respect of them.
- (c) We give no warranty in relation to the Services provided or supplied. Under no circumstances are we or any of its suppliers liable or responsible in any way to you or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
- (i) any Goods or Services supplied to you;
- (ii) any delay in supply of the Goods or Services; or
- (iii) any failure to supply the Goods or Services.
- (d) Our warranty that our Goods and Services are fit for purpose is a warranty given at the point in time when the Goods and Services are supplied, completed or installed and the warranty as to fitness for purpose is given subject to the:
- (i) laws, regulations and standards applicable at that time; and
- (ii) the physical environment in which the Goods and Services are supplied, completed or installed remaining unchanged other than by reason of natural wear with the passage of time.
- (e) By entering into this agreement, you agree, acknowledge and/or represent that you:
- (i) Understand the risks associated with the use of Goods and Services supplied, completed or installed by us;
- (ii) Undertake to perform a sufficient risk and hazard assessment to identify that the Goods and Services are safe to use prior to each occasion upon which you use Goods and Services supplied, completed or installed by us;
- (iii) are adequately trained and competent to perform risk and hazard assessments of the type referred to above; and
- (iv) are adequately trained and competent to safely and properly use the Goods and Services supplied, completed or installed by us.
(f) If, after the supply, completion or installation of Goods and Services, there is any change to the physical environment in which the Goods and Services are supplied, completed or installed other than by reason of natural wear with the passage of time and including because of the performance of other works proximate to the place where Goods and Services have been installed, then we explicitly revoke any warranty concerning the fitness for purpose of those Goods and Services and any representation as to the safety of the Goods and Services with the effect that you agree to immediately cease use of the Goods and Services and to seek that we test and re-certify that the Goods and Services are safe, risk and hazard free before you put the Goods and Services to any further use.
- (g) Any advice, recommendation, information, assistance or service given by us in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. We do not accept any liability or responsibility for any Loss suffered as a result of your reliance on such advice, recommendation, information, assistance or service.
- (h) To the fullest extent permissible at law, we are not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if we has been advised of the possibility of damages.
- (i) You acknowledge that the Goods or Services are not for personal, domestic or household purposes.
- (j) The Australian Consumer Law may give to you certain guarantees. Where liability for breach of any such guarantee can be limited, our liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.
- (a) You indemnify and keep indemnified us, our servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to you) against us or, for which we are liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Purchase Order or the subject matter of these terms and conditions.
- (b) This includes, but is not limited to, any legal costs incurred by us in relation to meeting any claim or demand or any party/party legal casts for which we are liable in connection with any such claim or demand.
- (c) This provision remains in force after the termination of these terms and conditions.
(17) Force Majure
- (a) If circumstances beyond our control prevent or hinder its provision of the Goods or Services, we are free from any obligation to provide the Goods or Services while those circumstances continue. We may elect to terminate these terms and conditions or keep the terms and conditions on foot until such circumstances have ceased.
- (b) Circumstances beyond the our control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
(18) Dispute resolution
- (a) If a dispute arises between the you and us, the following procedure applies:
- (i) A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.
- (ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
- (iii) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
- (b) If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 10 Business Days (or other period as agreed).
- (c) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
- (d) Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms and conditions.
- (e) The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
- (a) We may display your company or business name, logo, images or other media as part of our Services and/or other marketing materials relating to our Website, except where you have explicitly requested that we do not do this and we have agreed to such a request in writing. You acknowledge that we may use your clients company name, the public description of your Projects and the content of your profile information and your clients company profile on our Website for marketing and other related purposes.
- (a) These terms and conditions takes effect, is governed by, and is construed in accordance with the laws from time to time in force in Victoria, Australia.
- (b) The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.
- (c) These terms and conditions and any Quotes and written variations agreed to in writing by us represent the whole agreement between the parties relating to the subject matter of these terms.
- (d) These terms and conditions supersede all oral and written negotiations and communications by and on behalf of either of the parties.
- (e) In entering into these terms and conditions, you have not relied on any warranty, representation or statement, whether oral or written, made by us or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
- (f) If any provision of these terms and conditions at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
- (g) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
- (h) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent by fax to the fax number of the addressee specified in the relevant Quote, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
- (i) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
- (j) A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.