- These terms shall apply to and govern the supply by INTAKS Australia to the customer of all goods whether for purchase, rental or otherwise and any services provided by INTAKS If there is any conflict or inconsistency between these terms and the terms of any order submitted by the customer or any price list, invoice, schedule or delivery docket issued by INTAKS Australia, these terms shall prevail unless otherwise agreed in writing by INTAKS Australia.
- INTAKS Australia may at any time amend these terms by notice in writing to the customer, which may be by email. Such amendments will take effect (including for all hires and services that are yet to be fully completed but not for sales that are yet to be fully completed) from the first to occur of:
- the date of the first order for sale and/or hire and/or lease of goods or provision of services by the customer following the date the notice was sent to the customer;
- if the customer has current hires of hired goods with a minimum term that are still in their minimum term, the date falling one month after the end of the minimum term; and
- if the customer has current hires of hired goods with a minimum term that has ended, the last day of the calendar month after the month in which the notice was sent to the customer.
The current terms and conditions are available for viewing at www.intaks.com.au. The customer agrees to check the current terms and conditions before placing any order.
- Quotesand Acceptance of Orders
- All quotes for sale or hire or services are valid for 30 days. INTAKS Australia reserves the right to correct any errors or omissions in any quotation, invoice or schedule it provides to the customer.
- The customer agrees to present orders for goods or services or hire in accordance with INTAKS Australia’s procedures and any minimum order requirements as advised by INTAKS Australia from time to time. All orders are subject to acceptance by INTAKS Australia and, in the case of goods not held in stock by INTAKS Australia, INTAKS Australia confirming pricing. INTAKS Australia reserves the right to change any quoted price before confirmation is given to the customer. Notwithstanding any arrangement granting credit to the customer. INTAKS Australia reserves the right to accept or decline any order in its absolute discretion.
- Any acceptance of an order shall only be conditional acceptance and be subject to INTAKS Australia considering the customer’s credit status with INTAKS Australia. If INTAKS Australia considers that the creditworthiness of the customer is unsatisfactory, it shall be entitled to cancel any order without in any way being liable to the customer.
- After acceptance by INTAKS Australia no order may be cancelled or amended without the prior approval of INTAKS Australia and then only on the terms specified by INTAKS Australia.
- Rental of Hired Goods
- INTAKS Australia may (at its discretion) agree to hire out hired goods and the customer shall hire the hired goods and be entitled to use the hired goods on the terms set out herein (“rental agreement”). Notwithstanding anything to the contrary under these terms, all hires of hired goods from time to time shall be deemed to occur under one rental agreement (and not separate agreements).
- The hire period (“hire period”) starts on the day the hired goods are dispatched by INTAKS Australia and ends on the day the hired goods are received in full back at INTAKS Australia’s premises (or such other location as directed by INTAKS Australia).
- At the beginning of the hire period:
- INTAKS Australia will send the hired goods requested to the customer’s nominated delivery location in one or more shipment. The customer shall be responsible for the cost of packing and transporting the hired goods from INTAKS’NZ’s dispatch location(s) (including INTAKS NZ’s administration fee).
- Prior to dispatch of hired goods, INTAKS Australia will send the customer a schedule itemising the hired goods. The customer must promptly sign and return the schedule to acknowledge the hire. The failure of INTAKS Australia to issue a schedule or the customer to sign and return a schedule does not affect the validity of the hire of the hired goods.
- Hired goods will be hired and delivered in minimum lot sizes as specified by INTAKS Australia.
- At the end of the hire of any hired goods:
- The customer will deliver all of the hired goods back to INTAKS Australia’s nominated delivery location, at the customer’s cost, together with an itemised list of the hired goods that are being returned. The customer shall return the hired goods in a clean condition and in good working order and repair (fair wear and tear excepted).
- When INTAKS Australia receives the returned hired goods, it will check the goods against the signed schedule(s) for those hired goods. If hired goods returned to INTAKS Australia are:
- not in a clean condition, then INTAKS Australia will arrange cleaning and the cost of such cleaning shall be payable by the customer;
- not in good working order and repair (fair wear and tear excepted), then INTAKS Australia may elect to repair, recondition or renew such goods and the repair, reconditioning or renewal costs shall be payable by the customer; and
- in INTAKS Australia’s opinion (acting reasonably), in an unrepairable condition or not returned when checked against the schedule(s), then the customer shall pay INTAKS Australia for such goods at INTAKS Australia’s then current wholesale price as advised by INTAKS Australia.
Payments for the above shall be due immediately upon written notice from INTAKS Australia to the customer and clause 6 (Payment) of these terms shall apply.
- INTAKS Australia reserves the right to charge the customer a handling fee on hired goods when hired goods are returned to INTAKS Australia, provided such handling fee is made known to the customer at the start of the hire period and reflects INTAKS Australia’s costs associated with receiving the return of the hired goods.
- The customer acknowledges and agrees that unless it provides written notice in accordance with clause 14 then, to the maximum extent permitted at law, at the end of the period referred to in clause 14 it is deemed to acknowledge that it has received the hired goods in good working order and clean condition and that the hired goods are fit for the purpose for which the customer requires the hired goods. The customer shall maintain the hired goods in good order and cleanliness during the hire period. The customer must not brand or mark in anyway the hired goods by paint or other means. If components need to be repaired, the customer must return them to INTAKS Australia for repair.
- The customer shall be responsible in all respects for ensuring that the hired goods are at all times installed and used safely by competent personnel (whether by the customer or any third party) in accordance with all relevant laws and guidelines including any guidelines or instructions provided by INTAKS Australia and legislative and industry requirements, standards and good practice guidelines. The customer will ensure that the hired goods are only used with other products supplied by INTAKS Australia. The customer undertakes that it will advise INTAKS Australia immediately of any loss or damage to hired goods and it will immediately cease use of any damaged hired goods.
- The hired goods shall be at the sole risk of the customer throughout the hire period and until such time as the hired goods are returned to INTAKS Australia’s premises (or such other location as directed by INTAKS Australia). The customer shall keep the hired goods insured and keep INTAKS Australia indemnified for any loss or damage to the hired goods (including in transit). The customer shall hold full replacement insurance for the hired goods with the interest of INTAKS Australia as secured party noted, and Public Liability Insurance for not less than $10,000,000 at all times during the hire period(s), each with a reputable insurance company. The customer shall provide a certificate of currency for such insurance if requested by INTAKS Australia.
- INTAKS Australia shall be entitled, and the customer authorises INTAKS Australia, to enter the customer’s premises and any other property where the hired goods are situated (including any premises, land and buildings that the customer may enter upon), without being liable in any way to the customer or another other person, at any time in an emergency or otherwise without prior notice to enforce any rights it has under these terms and/or to inspect the hired goods. INTAKS Australia reserves the right to add additional marking on the hired goods to distinguish the hired goods from the customer’s other equipment.
- INTAKS Australia may terminate the hire of any hired goods (including during any minimum hire period) by giving 10 working days’ notice to the customer, and in the event of such termination the provisions of clause 10 (Default and Termination) shall apply.
- During any rental agreement or any other period of hire of goods, the customer must comply with any and all reasonable directions given to it by INTAKS Australia, including but in no way limited to:
- keeping any and all such records as INTAKS Australia reasonably requires;
- communicating any such messages to end users of the Goods as INTAKS Australia reasonably requires;
- effecting any such registrations under the PPSA as INTAKS Australia reasonably requires; and
- taking any such steps for the protection of the Goods as INTAKS Australia reasonably requires.
- Priceof Goods and Services and Hire Charges
- Subject to clause 4.2, the price of the sale goods (the “price”) shall be the price notified to the customer by INTAKS Australia at the date of acceptance of the customer’s order plus GST and government duties, levies or taxes. The customer shall pay all packing and transport costs (including INTAKS Australia’s administration fee).
- To the maximum extent permitted at law, any increases in the cost of supply of the sale goods (including without limitation increases in the price of sale goods not held in stock by INTAKS Australia or due to variations in exchange rates, the cost of labour, freight, handling or insurance or any duties or taxes) between the date of acceptance of the order and the date of delivery of the sale goods shall be borne by the customer.
- Any discounts or rebates on the price offered by INTAKS Australia are conditional on payment being made in cleared funds on or before due date. If the customer fails to comply with that condition, payment of the full amount of the price shall become immediately due and payable.
- Hire charges on hired goods for the hire period will be at a daily (based on a week of 7 days), weekly, monthly or other periodic rate as specified in the INTAKS Australia invoice for hired goods that are supplied (“hire charges”) plus GST and government duties, levies or taxes. Hire charges apply for the full hire period. Unless otherwise expressly agreed by INTAKS Australia, there will be no reduction to the hire charges for weekends, holidays, inclement weather, natural disasters or for any other reason including, without limitation, any one or more of the following: epidemics and measures implemented to prevent or limit an epidemic, strikes, lockouts, cessation of labour, transport delays and Government or other public authority restrictions, interference or control. INTAKS Australia may notify the customer of a minimum hire period for any hired goods, including by email, before the hire is agreed between INTAKS Australia and the customer.
- INTAKS Australia reserves the right to amend hire charges for hired goods at any time by providing notice of revised hire charges. In the event INTAKS Australia increases the hire charges the customer shall be entitled to terminate the hire of those hired goods with immediate effect by notice in writing to INTAKS Australia. If the customer does choose to terminate the hire in accordance with this clause the provisions of clause 3.4 will apply.
- Charges for services shall be the price notified to the customer by INTAKS Australia at the date of acceptance of the customer’s request for services plus GST and government duties, levies or taxes.
- Titleand Risk
- Title in all sale goods shall pass to the customer when all amounts owing in respect of all sale goods have been paid in full in cleared funds. All risk of any loss or damage or deterioration in respect of the sale goods shall pass to the customer upon dispatch to the customer. The customer shall be responsible for obtaining insurance for full replacement of the sale goods from the time they are dispatched until such time as the sale goods are paid for in full and shall, if demanded by INTAKS Australia, produce evidence of such insurance cover. Until such time as the sale goods are paid for in full the customer agrees that it will not create or allow any charge, lien, security interest or any other encumbrance whatsoever over or in any of the sale goods or sell or otherwise dispose of the sale goods without the prior written consent of INTAKS Australia.
- Notwithstanding the above, the customer acknowledges that it has no right, title or interest in any hired goods and that the hired goods will at all times remain the property of INTAKS Australia. The customer agrees that it will not create or allow any charge, lien, security interest or any other encumbrance whatsoever over or in any of the hired goods or sell or otherwise dispose of, or part with possession of (other than for installation and use on a customer’s client site), the hired goods without the prior written consent of INTAKS Australia. Hired goods must not be shipped or used outside of Australia. All risk of the hired goods shall be in accordance with clause 3.7 of these terms.
- The customer must at its own cost as bailee store the hired goods, and the sale goods (until such time as all amounts owing in respect of all sale goods have been paid in full), separately from other equipment in the possession of the customer and must clearly distinguish and identify the hired goods and the sale goods as INTAKS Australia’s equipment.
- In consideration for the sale of sale goods to the customer, the customer agrees that it will not ship sale goods outside of Australia, sell sale goods to any person outside of Australia or knowingly sell sale goods to any third party for on sale outside of Australia.
- Payment for sale goods and for services from the customer to INTAKS Australia is due in cleared funds on the date of invoice unless credit terms are extended to the customer. Where credit is extended to the customer, payment is overdue if not paid in clear funds by the 20th day of the month following date of invoice, unless otherwise agreed in writing by INTAKS NZ. The customer may be required to pay INTAKS NZ a deposit before delivery of sale goods or the provision of services or the hire of hired goods.
- Payment of the hire charges for hired goods shall be overdue if not paid in cleared funds by the 20thday of the month following date of invoice, unless otherwise agreed in writing by INTAKS Australia. INTAKS Australia reserves the right to require the customer to pay hire charges in advance and prior to dispatch.
- Time is of the essence in respect of the payment obligations of the customer. If payment is overdue that shall constitute a breach of these terms and the customer will upon demand in writing pay to INTAKS Australia interest at the prevailing rate pursuant to the Penalty Interest Rates Act 1983(Vic) plus 2% for the period from the due date until payment in full in cleared funds is received by INTAKS Australia.
- INTAKS Australia may at its discretion apply any payments it receives from the customer in and towards the satisfaction of any indebtedness of the customer and it shall not be bound by any terms or qualifications that the customer may make in relation to payments made under this or any other contract with INTAKS Australia.
- Where INTAKS Australia takes payment by the customer’s credit card, the customer also authorises INTAKS Australia to charge the card again where additional costs, fees, and charges become due or overdue without notice to the customer in line with Invoices issued to the client.
- INTAKS Australia may on-charge additional to any total invoice amount the merchant or banking fees associated with processing the payment of any invoice(s).
- INTAKS Australia reserves the right to agree or decline to grant credit to the customer and to suspend or cancel any terms of credit with effect from the date of notice to the customer.
- INTAKS Australia reserves the right to impose a credit limit which may be altered at INTAKS Australia’s reasonable discretion with effect from the date of notification to the customer. If the credit limit is at any time exceeded that shall constitute a breach of these terms and, without prejudice to any of INTAKS Australia’s other rights under these terms or at law, all amounts that would become payable at a later time by the customer become immediately due and payable by the customer. INTAKS Australia may, in addition to its other remedies, refuse to accept any further orders from the customer and/or withhold delivery of any goods ordered by the customer or the provision of services to the customer under any contract until the breach is remedied to the reasonable satisfaction of INTAKS Australia.
- The customer shall, if required by INTAKS Australia, arrange for the customer’s liability to be guaranteed by third persons, or secured by securities, on terms satisfactory to INTAKS Australia. This requirement may be imposed by INTAKS Australia at any time and INTAKS Australia may suspend the provision of credit to the customer and/or withhold delivery of any goods ordered by the customer under any contract pending its fulfilment to the reasonable satisfaction of INTAKS Australia.
- Engineering and Design Services
- INTAKS Australia does not provide engineering or design services and to the maximum extent permitted at law does not take any responsibility for drawings, designs or specifications, or any advice about the erection or suitability of goods for any particular purpose (and the responsibility for, and costs of, obtaining these services are for the customer). If INTAKS Australia arranges for engineering or design services on behalf of the customer or otherwise provides any drawings, designs, specifications or advice to the customer, the customer agrees that INTAKS Australia does not accept responsibility for those things. To the maximum extent permitted at law, INTAKS Australia specifically excludes all liability and all representations, warranties or guarantees as to the practicability, effectiveness or safety of the drawings, designs, specifications, services or advice. The customer agrees that it accepts all responsibility for, and will take all prudent steps in respect of, all drawings, designs, specifications and engineering or design services (including engaging expert advice specific to the relevant site and job requirements) and ensuring that all scaffolding and edge protection are safe and fit for purpose.
- The customer will upon demand in writing pay all INTAKS Australia’s expenses and legal costs (on a solicitor/agent/client basis) in or in connection with the registration of an interest on the Personal Property Securities Register, or the collection of overdue moneys or the exercise, enforcement or preservation of any right or interest under these terms or any other contract with the customer.
- Defaultand Termination
- For the purposes of this clause 10, each of the following is an “event of default”:
- if any amounts payable by the customer to INTAKS Australia are overdue under these terms or any other contract with INTAKS Australia; or
- if the customer fails to meet any obligation under these terms or any other contract with INTAKS Australia or any of its related or associated entities; or
- if the customer becomes insolvent or is subject to any actual or threatened dissolution, winding up, bankruptcy, liquidation, statutory management or receivership or any event which generally precedes such an event; or
if an arrangement with the customer’s creditors is made or likely to be made; or
- if the customer ceases or threatens to cease carrying on business; or
- if the ownership or effective control of the customer is transferred or there are any material changes in ownership or control, or the nature of the customer’s business is materially altered; or
- if INTAKS Australia (acting reasonably) believes the customer is using the hired goods inappropriately, illegally, unsafely or in any way other than for their intended purpose; or
- an event occurs or information becomes known to INTAKS Australia, which in its reasonable opinion might materially affect the customer’s creditworthiness, the value of the goods sold or hired or the customer’s ability or willingness to comply with its obligations under these terms or any other contract with INTAKS Australia.
- Subject to any applicable statutory stay, where any event of default occurs INTAKS Australia may, but without prejudice to its other rights and remedies, take one or more of the following actions:
- cancel or suspend the customer’s entitlement to credit and require payment in cash on or before delivery of any goods ordered by the customer under any contract and/or withhold supply of any goods or the provision of services or the hire of any hired goods until the customer has paid or discharged all sums owing to INTAKS Australia;
- suspend INTAKS Australia’s performance and/or terminate all or any part of the contract, rental agreement or lease to own agreement recorded in these terms and/or any other contract or contracts with the customer by notice in writing to the customer;
- appoint a receiver in respect of all goods (including their proceeds) supplied to the customer and any such receiver may take possession of the goods and sell them and otherwise exercise all rights and powers conferred on a receiver by law;
- take possession of and sell or re-hire goods and for that purpose the customer grants INTAKS Australia the irrevocable right or licence by its agents, servants and employees to enter the premises of the customer or any other property where the goods are situated (including any premises, land and buildings that the customer may enter upon) without being liable in any way to the customer or another other person, and the customer shall indemnify INTAKS Australia upon demand in writing for all claims by any third party for any losses resulting from INTAKS Australia effecting repossession;
- require the customer to pay on demand, and the customer must pay, any costs, expenses and losses incurred by INTAKS Australia in connection with the event of default or enforcement actions taken by INTAKS Australia under this clause 2.
- Without limiting INTAKS Australia’s rights under this clause 10, upon termination of the contract recorded in these terms, rental agreement or any other contract that incorporates these terms whether under this clause 10 or otherwise:
- all sums owing by the customer under the contract to INTAKS Australia shall become immediately due and payable (irrespective of the contracted date for payment); and
- where the customer has hired goods:
- the customer shall immediately cease using the hired goods; and
- the customer will immediately arrange for the hired goods to be returned to the customer’s premises and will take all steps that may be reasonably required by INTAKS Australia to immediately return the hired goods to INTAKS Australia’s premises (or such other location as directed by INTAKS Australia).
- PersonalProperty Securities Act
- For the purposes of this clause, the terms used in this clause 11have the same meaning as contained in the PPSA.
- For the purposes of the PPSA:
- in the case of a contract for sale of goods, or
- where INTAKS Australia determines a rental agreement is a PPS Lease;
- these terms are a security agreement and INTAKS Australia has a Purchase Money Security Interest in all present and future goods supplied by INTAKS Australia to the customer and the proceeds of the goods;
- is a continuing security interest irrespective of whether there are monies or obligations owing by the customer at any particular time; and
- the customer must do whatever is necessary in order to give a valid security interest over the goods, which is able to be registered by INTAKS Australia on the Personal Property Securities Register.
- The security interest arising under this clause 11attaches to the goods when the goods are collected or dispatched from INTAKS Australia’s premises and not at any later time.
- The customer must not allow to be, or be liable to become, perfected or attached in favour of any person, a security interest over the goods.
- Where permitted by the PPSA, the customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 135 and 157 of the PPSA.
- INTAKS Australia and the customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these terms.
- To the extent permitted by the PPSA, the customer agrees that:
- the provisions of Chapter 4 of the PPSA which are for the benefit of the customer or which place obligations on INTAKS Australia will apply only to the extent that they are mandatory or INTAKS Australia agrees to their application in writing; and
- where INTAKS Australia has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
- The customer must immediately upon INTAKS Australia’s request:
- do all things and execute all documents necessary to give effect to the security interest under these terms; and
- procure from any person considered by INTAKS Australia to be relevant to its security position such agreements and waivers (including as equivalent to those above) as INTAKS Australia may at any time require.
- INTAKS Australia may allocate amounts received from the customer in any manner INTAKS Australia determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods.
- For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential. Neither party may disclose any information pertaining to these terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.
- The customer irrevocably appoints INTAKS Australia to be the customer’s attorney to do anything which the customer agrees to do under these terms and anything which the attorney thinks desirable to protect INTAKS Australia’s interests under these terms and the customer ratifies anything done by an attorney under this clause 11.
- The customer must advise INTAKS Australia immediately of any changes to the information provided to INTAKS Australia in respect of the customer, and at least 5 working days before changing the customer’s name or trading name.
- The customer shall ensure that all third parties who may from time to time hire or lease any of the goods (when hired goods or sale goods sold on credit and not paid for in full) from the customer are advised of INTAKS Australia’s security interest in such goods.
- Enforcement of Security Interest: The security interests created by this Agreement become enforceable if any of the following events of default occur:
- The customer breaches the terms of this agreement or any other agreement between the parties; or
- INTAKS Australia believes the customer is insolvent or has otherwise committed an act of insolvency, a receiver is or is about to be appointed in respect of any of its assets, or a liquidator is or is about to be appointed in respect of the customer.
- Healthand Safety
- The customer acknowledges that it has duties under the WHS Laws in respect of use of the hired goods.
- The customer will:
- at all times strictly and fully comply with all duties imposed on it and its sub-contractors and employees under the WHS Laws;
- if any hazard to people arises in connection with its use of the hired goods, immediately take all reasonably practical steps to eliminate that hazard and, to the extent that the hazard cannot be eliminated, to minimise the risk as far as reasonably practicable; and
- comply with all reporting requirements and manage every Incident that has or may have resulted in harm to any person, property, or the environment.
- The customer warrants:
- it will ensure that any hired goods are only used with other products supplied by INTAKS and are always installed and used safely (whether by the customer or any third party who sub hires from the customer) by suitably qualified, competent and experienced installers in accordance with and good industry practice, regulatory requirements, and all relevant product and industry guidelines; and
- the customer will inspect the hired goods before use and ensure that hired goods are only used if they are fit for the purpose for which they are to be used.
- The customer acknowledges that INTAKS Australia owns or is licensed to manufacture and supply the goods which contain patents and copyrighted designs (“IP”). The IP shall remain vested in INTAKS Australia and the purchase or hire of the goods does not transfer any right in the IP or right to manufacture goods or otherwise use the IP other than for the use of the goods as supplied. The customer does not acquire any right, title or interest in any copyright, trademarks or other intellectual property rights relating to any of the goods. The customer must not cause, assist or permit anything to occur which may interfere with, damage or endanger the IP.
- The customer must not, without the prior written consent of INTAKS Australia, use the brand “INTAKS” and related intellectual property which belongs to INTAKS Australia. Approval must be sought from INTAKS Australia for using the “INTAKS” brand on the customer’s advertising and marketing materials, business cards, websites, vehicles, signage and similar. If consent is given by INTAKS Australia, the usage is valid only so long as INTAKS Australia supplies the customer provided that the consent may be withdrawn at any time. Should INTAKS Australia cease to supply the customer or the consent be withdrawn, this right ceases automatically, and the customer must immediately cease any usage of the “INTAKS” brand and related intellectual property in all of its advertising and marketing materials, business cards, websites, vehicles, signage, stationery, quotes, invoices and similar.
- The customer must advise INTAKS Australia immediately if it becomes aware of any unauthorised use or attempted use by any person of INTAKS Australia’s brand or IP or other intellectual property rights.
- The customer must ensure that all confidential information it receives from INTAKS Australia is protected and kept strictly confidential. Any disclosure to the customer’s employees and advisors shall only be on a need to know basis and on the basis that those parties at all times maintain strict confidentiality.
- Customer Inspection and Defects of Goods
- The customer must inspect all goods on delivery and must, within 2 working days of delivery, notify INTAKS Australia in writing of any goods that are faulty or not delivered to the customer or not in good and fit for purpose condition. To the maximum extent permitted at law, goods will be deemed to conform to these terms despite minor discrepancies or variations which are usual for goods of the nature supplied or anything occurring in transit with a third party even if INTAKS Australia arranged for that transportation. The customer shall afford INTAKS Australia an opportunity to inspect the goods within a reasonable time following delivery (and will, on request and at the cost of INTAKS Australia, send the goods in question to INTAKS Australia for inspection) if the customer believes the goods are faulty or not in a good and fit for purpose condition in any way. To the maximum extent permitted at law, if the customer shall fail to comply with these provisions (time being of the essence), the goods shall be deemed to be delivered in full, without fault, and in good and fit for purpose condition.
- Warranty and Limitation of Liability
- Subject to the conditions of warranty set out in clause 15.2, INTAKS Australia warrants that if any defect in any workmanship of sale goods supplied becomes apparent and is reported to INTAKS Australia in writing within two (2) years of the date of dispatch (time being of the essence) then INTAKS Australia will either (at INTAKS Australia’s sole discretion) repair the defect or replace the sale good. These terms will apply to any repaired or replacement sale goods supplied by INTAKS Australia except that any warranty period will be deemed to have run from the date of dispatch of the sale goods originally supplied.
- The conditions applicable to the warranty given by clause 15.1 are:
- The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- Failure on the part of the customer to properly maintain any sale goods; or
- Failure on the part of the customer or any third person to follow any instructions or guidelines provided by INTAKS Australia; or
- Any use of any sale goods otherwise than for any application specified in guidelines provided by INTAKS Australia; or
- Any use of any sale goods other than with other INTAKS Australia products; or
- The continued use of any sale goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
- Wear and tear, accident, act of God, alteration, negligence, wilful damage or abnormal storage or use (including, without limitation, through damage by a crane or other machine); or
- Anything occurring in transit with a third party even if INTAKS Australia arranged for that transportation.
- The warranty shall cease and INTAKS Australia shall thereafter in no circumstances be liable under the terms of the warranty if the sale goods are repaired, altered or overhauled without INTAKS Australia ‘s consent.
- In respect of all claims INTAKS Australia shall not be liable to compensate the customer for any delay in either replacing or repairing the sale goods or in properly assessing the customer’s claim. With respect to hired goods, to the extent permitted by law, INTAKS Australia excludes all warranties, conditions, rights and remedies to which the customer may otherwise be entitled in relation to the hired goods.
- Any date given by INTAKS Australia for the delivery of goods is an estimate only and not a contractual commitment. INTAKS Australia will use reasonable endeavours to meet any estimated dates for delivery of goods, but does not guarantee delivery on that date, and will not be liable for any loss or damage suffered by the customer or any third party for failure to meet any estimated date. If INTAKS Australia cannot deliver goods by any estimated date, it will deliver the goods within a reasonable time.
- Except as these terms specifically state, or as contained in any express warranty provided in relation to the goods, no contract or rental agreement includes by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
- If the customer is a consumer, nothing in these terms restricts, limits or modifies the customer’s rights or remedies against INTAKS Australia for a failure of a statutory guarantee under the ACL.
- If the customer on-supplies the goods to a consumer and:
- the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of INTAKS Australia’s liability to the customer;
- the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of INTAKS Australia’s liability to the Customer;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the customer or any third party.
- If clause 5or 15.6 do not apply, then:
- other than as stated in these terms or in any written warranty statement, INTAKS Australia is not liable to the customer in any way arising under or in connection with the sale, hire, rental, installation, use of, storage or any other dealings with the goods or services by the customer or any third party; and
- the customer will release, hold harmless and indemnify INTAKS Australia from and against all liabilities, claims, damages, losses, costs and expenses, howsoever occurring which may accrue against or be suffered by INTAKS Australia arising in any way from the use of the goods or services.
- INTAKS Australia is not liable for any indirect or consequential losses or expenses suffered by the customer or any third party, howsoever caused, including but not limited to loss of business or goodwill, loss of profits, loss of revenue, loss of turnover, or liability to any third party, except to the extent of any liability imposed by the ACL.
- INTAKS Australia may from time to time provide advice and statements about goods. INTAKS Australia does not warrant or guarantee the accuracy or completeness of the advice or statements or the results obtained through the use of the goods. INTAKS Australia expressly disclaims liability for any damage to the customer from reliance on such advice or statements. The customer must make its own enquiries having regard to the specific circumstances. The customer acknowledges that:
- it has not relied on any service involving skill and judgement, or on any advice, recommendation or information or assistance provided by INTAKS Australia in relation to the goods or services or their use or application;
- it has not made known, either expressly or by implication, to INTAKS Australia any purpose for which it requires the goods or services, and it has the sole responsibility of satisfying itself that the goods and services are suitable for the customer’s use; and
- any training provided by INTAKS Australia is only intended as general information about goods supplied by INTAKS and the use of those goods, and the training is not intended to be definitive guidance – and, accordingly, to the maximum extent permitted by law, INTAKS Australia’s liability in respect of any training or guidance provided is limited to the total amount of fees received by INTAKS Australia in respect of the training or advice in question.
- Nothing in these terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying, the application of any Federal or State legislation applicable to the supply of goods or services that cannot be excluded, restricted or modified.
- The customer agrees not to give or make any undertaking, assertion, representation or warranty in relation to goods without INTAKS Australia’s prior approval in writing.
- To the extent INTAKS Australia’s liability cannot be limited in the manner set out in the balance of this clause 15, INTAKS Australia’s liability under or arising from these terms, whether in contract, tort, equity or otherwise, is limited to the lower of:
- the price actually paid by the customer for the specific goods or services for which the claim relates (and not the full order or shipment)or, in respect of hired goods, the equivalent of one month’s rental for the specific hired goods for which the claim relates (defective hired goods will also be replaced with equivalent hire goods);
- the cost of repairing the goods or replacing the services; and
- the actual loss or damage suffered by the customer.
- To the maximum extent permitted by law, INTAKS Australia accepts no liability for any damages or losses arising from any act, default or negligence on the part of the customer or its employees, subcontractors, agents or its customers.
- Personal or Credit Information and Credit Reporting
- INTAKS Australia may disclose any information about the customer, including the customer’s personal information for any of the purposes listed in clause 16.1, to third parties who provide services to INTAKS Group companies, Government departments, law enforcement agencies, including the police, debt collection services or credit reporting agencies, liquidators, administrators or other persons appointed to administer the customer’s financial affairs, and agents for any of these persons. Some of the parties listed above may be located overseas. INTAKS Australia will only transfer the customer’s personal information to an overseas recipient who is obliged to protect the customer’s personal information with comparable safeguards to those contained in the Privacy Act, or otherwise INTAKS Australia will obtain the customer’s express consent to transfer the personal information overseas.
- The customer irrevocably authorises all persons, companies, credit reporting agencies and other entities to provide INTAKS Australia with such information as INTAKS Australia may at any time request about the customer (including where applicable, its principals and directors) in relation to any of the purposes listed in clause 16.1 and/or any directly related purposes, and the customer confirms that the customer is authorised to provide this approval to INTAKS Australia on behalf of the customer’s principals and directors.
- In these terms:
- the following terms shall have the following meanings:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
“consumer” is as defined in the ACL, and in determining if the customer is a consumer the determination is made if the customer is a consumer under the contract or rental agreement;
“customer” means the person or entity who purchases sale goods and/or hires hired goods from INTAKS Australia and, where applicable, includes the employees, contractors, agents and subcontractors engaged by the customer to purchase sale goods and/or hire hired goods from INTAKS Australia.
“goods” means the hired goods and/or the sale goods (as the context requires).
“GST” means goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended.
“hired goods” means INTAKS Australia scaffolding and edge protection equipment hired by the customer from INTAKS Australia pursuant to these terms or other agreement between the customer and INTAKS Australia.
“INTAKS Group” means INTAKS Australia, related and affiliated INTAKS companies, and licensees of any of the listed companies.
“INTAKS Australia” means INTAKS Australia Pty Ltd (ACN 662 017 334) and its successors or permitted assigns.
“Personal Property Securities Register” has the meaning given in the PPSA.
“PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended.
“Privacy Act” means the Privacy Act 1988 (Cth) and its associated Regulations as amended.
“sale goods” means INTAKS Australia scaffolding and edge protection equipment purchased by the customer from INTAKS Australia pursuant to these terms or other agreement between the customer and INTAKS Australia.
“services” means services supplied by INTAKS Australia to the customer;
“WHS Laws” means any and all laws bearing on the customer and the customer’s possession and use of goods relating to workplace safety, including but not limited to the Work Health and Safety Act 2011 (Cth)
“working day” means a day on which banks are open for business in Victoria, Australia, not being a Saturday, Sunday or public holiday.
“written notice” and “in writing” shall mean notice in writing, which may be by email, and shall be deemed to have been received when:
- delivered by hand, at the time of delivery; and
- delivered by email, on the day on which the email is sent,
provided that any communication received or deemed received after 5pm or on a day which is not a working day will be deemed not to have been received until the next working day.
- clause headings are for reference only and do not affect interpretation.
- if the customer comprises more than one person, each person’s liability will be joint and several.
- references to the singular shall include the plural and vice versa.
- References to legislation include such legislation from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under such legislation.
- The laws of Victoria, Australia, from time to time govern these terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and courts entitled to hear appeals from those courts.
- If any provision of these terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- The customer shall not be entitled to set off against or deduct from the price of the goods or the hire charges or the charges for services any sums owed or claimed to be owed to the customer by INTAKS
- The failure by either party to enforce any provision of these terms shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. No waiver shall be effective unless it is in writing.
Neither party may assign or subcontract any of its rights or obligations under these terms without the prior consent of the other party, and