1. CONTRACT FORMATION
When Supplier provides Customer with a Quotation, Supplier makes an offer to Customer to acquire the Goods or Services on the Quotation on the Terms and Conditions and other details of the order on the Quotation.
1.1 Customer may accept the offer only by an authorised representative of Customer:
(i) Using the services on Supplier’s website to order and pay for goods and or services by an authorised representative
(ii) By providing a valid Purchase Order (PO) and returning it to Supplier within the validity period of the Quotation (or such longer period agreed by Supplier) by email, fax or any other valid mode of communication
(iii) If Customer believes there is an error in Supplier’s confirmation of the details of the Quotation that has been accepted Customer, Customer must provide written notice of the error to Supplier within 1 business day of receipt of the confirmation, otherwise the Order will be deemed to be made on basis of the details in the Quotation and the Terms and Conditions.
1.2 If the parties agree to any amendment to a Quotation, each amendment must be specifically initialled by an authorised person of Supplier and the Quotation must be signed by a authorise person of Supplier in order for the amendment to become part of the Order.
1.3 Once a Quotation has been accepted in accordance with clause 1.2 it becomes an Order, provided that if the Order is conditional upon any requirement being met, e.g. payment of a deposit, the Quotation is deemed not accepted until all the conditions are met in full within the validity period of the Quotation (or such longer period agreed by Supplier). Supplier has no obligation to commence any Services, commence manufacture of any Goods or provide any Goods until a binding Order is in place.
1.4 Once a binding Order is in place it may not be cancelled by Customer.
1.5 If Customer makes any other orders of Goods or Services from Supplier then these Terms and Conditions shall apply to those other orders, unless a separate written agreement has been entered into in respect of those other orders.
2. SUPPLY OF GOODS
(i) These terms and conditions are subject to our Delivery and Freight Terms, which are available at Delivery and Freight Terms
(ii) Subject to receipt of any payment or deposit that is stated on the Order as being payable prior to Delivery, Supplier will use all reasonable efforts to install (if applicable) and Deliver the Goods by the Estimated Delivery Date. Supplier may Deliver the Goods on any Order in one or more deliveries.
(iii) Customer must inspect the Goods at the time of Delivery to ensure that they conform to the requirements of the Order. If Customer believes that any of the Goods do not meet the requirements of the Order Customer must give Supplier written notice of the alleged defect within 7 days of the inspection. Customer may not reject the Delivery of the Goods if the quantity of Goods Delivered varies by +/-10%, but Customer may claim a pro rate adjustment to the price payable for any shortfall by giving written notice to Supplier within 7 days of the inspection.
(i) “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
Where the Goods are for use by Customer:
(ii) Supplier warrants to Customer that the Goods will meet the specifications in all material respects a period of 90 days from the date of Delivery (Warranty Period), provided that they are used and maintained in accordance with the Supplier’s documentation and Supplier’s instructions. This warranty does not apply where the defect has been caused by neglect, incorrect use or repair by any person who is not authorised by the Supplier to conduct repairs.
(iii) If Customer believes that there is a defect in the Goods during the Warranty Period Customer must promptly notify Supplier in writing at the address set out in the Order setting out the details of the defect during the Warranty Period and Supplier may at its option and cost, either replace or repair the Goods within a reasonable period. Any replaced Goods or parts become the property of Supplier.
(iv) The benefits that Supplier provides to consumers under the Warranty Against Defects in this Agreement are in addition to any other rights or remedies the consumer may have in respect of these goods or services under the Australian Consumer Law. Where Customer is exercising its rights in respect of a “Warranty Against Defects (as defined by Regulation 90, issued under the Australian Consumer Law) then, in accordance with that Regulation:
2.3 The services are provided by Go Live Australia Pty Limited ABN 82 167 918 005 of 26 Meta Street Caringbah NSW 2229, telephone number: 1300 719 633, email address: firstname.lastname@example.org
2.4 In order to make use of this service you must comply with the requirements in clause 2.6(ii) and Supplier will provide the service described in that clause. The costs for the service that Supplier provides as a Warranty Against Defects are included within the price of the Goods. No additional fees are payable by you for this service. You are responsible for any expenses you incur in using this service.
2.5 Goods may be covered by a manufacturer’s warranty in addition to the Supplier’s warranty and any statutory guarantees.
2.6 Where goods are re-sold by Customer to Customer’s clients:
(i) Customer must not make any representation or provide any warranty that is greater than, or different to, the representations or warranties provided in Supplier’s documentation for the Goods;
(ii) The supplier provides any guarantees, warranties and manufacturer’s indemnities only to the extent required by law;
2.7 Customer must limit its liability for any defective Goods (and any loss, damage or expense that arise out of, or in connection with, the Goods) in its contracts with its clients to:
(i) where the client is a “consumer” under the Australian Consumer Law, to the maximum extent permitted by s64A of the Australian Consumer Law;
(ii) any other buyer of the Goods, to an amount that is no greater than the price paid to Customer by the buyer, or $500, whichever is the lower;
2.8 Supplier’s liability to Customer under s274 Australian Consumer Law is limited to a liability to pay Customer an amount equal to:
(i) the cost of replacing the Goods;
(ii) the cost of obtaining equivalent goods; or
(iii) the cost of having the Goods repaired,
(iv) whichever is the lowest amount.
2.9 Supplier will take reasonable action to ensure that there are facilities available for the repair of Goods and that spares are reasonably available for the Goods for a minimum period of 12 months from date of Delivery. Customer must order and pay separately for all repairs and spares ordered from Supplier (other than where the repair is covered by a statutory guarantee under the Australian Consumer Law).
2.10 Risk and title in the Goods passes to Customer at the time when the Goods are Delivered to the Customer’s delivery address.
(i) store, assemble, use and maintain the Goods in accordance with any documentation provided with the Goods, the specifications or any instructions provided by Supplier;
(ii) not use or re-sell the Goods for the purpose for which they were not designed. No Goods provided under any Order are designed for, or permitted to be used for, any purpose, which has a high risk of death or personal injury.
3.1 Any Services provided under an Order are provided on a time and materials basis only under the direction and control of Customer. Supplier will charge Customer for all time spent on the Services (including travelling time to and from the Customer’s premises) and Customer must pay for such time whether it is less than, or more than, any estimate given. Supplier shall use its best efforts to advise Customer in advance if it believes that any estimate will be exceeded. If Customer requires fixed price services then the parties may agree to such arrangements using Supplier’s contract for fixed price services. Customer must pay all Supplier’s expenses incurred in providing the Services in accordance with Supplier’s policy. Any work that is performed urgently, outside of Supplier’s normal working hours, including on evenings, weekends and public holidays, will be charged at Supplier’s current rates.
3.2 If required by Customer, Supplier will provide time sheets and any expense claims for Supplier’s approval. Supplier must raise any issues with the information on a time sheet or expense claim or Supplier must sign the time sheets and/or expense claims signifying Supplier’s approval of them, within 7 days of receipt.
3.3 Customer must, at its own expense:
(i) provide access to Supplier and its contractors to Customer’s site at the agreed dates and times (to be no shorter than Supplier’s normal business hours on each day);
(ii) provide Supplier with the necessary facilities, equipment and resources to enable Supplier to perform the Services;
(iii) provide Supplier with complete and accurate information in a timely manner as may be needed to facilitate Supplier performing the Services;
(iv) promptly make any decisions needed by Supplier to perform the Services;
(v) backup all necessary data prior to the supplier performing the Services.
3.4 Customer acknowledges that a failure to meet the obligations in clause 3.3 (iii) may result in delays in the provision of the Services and additional costs. Supplier will not be responsible for any such delays. Supplier is entitled to charge Customer for any time or expense incurred as a result of the failure of Customer to comply with its obligations under the Order.
3.5 Customer warrants that it has the authority to allow Supplier and its contractors to use any facilities, equipment, resources and/or intellectual property rights that Customer provides to Supplier or its contractors for use in connection with performing the Services.
3.6 Customer must provide a safe environment for any of Supplier’s personnel that are visiting or working at Customer’s site.
3.7 In the event that a Live Stream production or similar is stopped for any reason, Go Live Pty Ltd Will not be liable for any financial damages this may cause to a company, institute, firm, entity or person. Go Live will perform to the best of their ability to prevent any unforeseen incidents by following all professional practical skills to prevent any live stream outages, but will not be liable for any cost related to a technical fault.
3.8 In the event the Customer is as at fault for any unforeseen outage or stoppage of a Live Stream or similar, Go Live Pty Ltd will not be financially liable or at fault for any damages the customer may have caused.
4. PAYMENT AND TAXES
4.1 Unless otherwise expressly stated on an Order, the price for any Goods or Services sold by Supplier to the Customer (or any expense or charge) does not include any GST. Customer must pay Supplier the ex-GST amount for the Goods and/or Services and/or other charges set out on the Order, plus any GST.
4.2 Customer must pay Supplier the amounts due for any Goods on an Order:
(i) in full prior to the date of Delivery; unless
(ii) the Order states that the Goods must be paid for by way of a deposit prior to Delivery and the balance after Delivery, then Customer must pay the deposit prior to Delivery and the balance by the date(s) specified in the Order (or if no date(s) specified in the Order, an invoice will be issued at time of delivery); If Supplier is ready, willing and able to Deliver the Goods, and the Customer is unwilling or unable to accept Delivery, Supplier is entitled require immediate payment for the goods, despite them not being Delivered; or
(iii) the Order states that the Goods must be paid for in full after Delivery when Customer must pay the full amount by the date specified in the Order (or if no date specified in the Order, an invoice will be issued at time of delivery.
4.3 Customer must pay Supplier the amounts due for any Services on an Order:
(i) prior to the date of Delivery; unless
(ii) the Order states that the Services must be paid for in arrears on a periodic basis, then Customer must pay the amounts due at the end of each period as stated on the Order (or if no period is specified in the Order, an invoice will be issued immediately prior to the period in which Services are to be provided.
4.4 Supplier will issue a tax invoice for any amount due under an Order prior to the date that payment must be made or as set out in this Agreement. Such tax invoice must be paid within the terms of the invoice or the date when payment must be made under clauses 4.2(ii) or 4.2(iii), whichever is the sooner.
(i) Time is of the essence for Customer’s payment obligations. If the Customer fails to make any payment when due, then without any liability to Customer and in addition to any other of Supplier’s remedies or rights:
(ii) Supplier may suspend Delivery of the Goods (or cease any work on the manufacture of any Goods) or suspend any Services under the Order in connection which payment has not been made by the due date and any other Order (whether or not Customer is in default under that other Order) until the Customer pays the outstanding amounts or provides Supplier with such other financial security that is acceptable to Supplier in its absolute discretion;
4.5 Supplier may charge Customer a late charge for any failure to make any payment by the date required under the Agreement calculated daily using a rate that is 4% over the Reserve Bank of Australia’s Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by Supplier, both dates inclusive.
4.6 Supplier may-set off any amount owing to Supplier from Customer under any Order or any other contract, against any amount owing to Customer from Supplier. Customer must pay Supplier all amounts due in connection with any Order without set off or deduction for any reason.
4.7 Money amounts in this Agreement are stated in Australian currency unless stated otherwise on an Order. All amounts must be paid in Australian currency unless stated otherwise on an Order.
5. WARRANTIES AND STATUTORY GUARANTEES
5.1 If Customer is entitled to a statutory guarantee under sections 54 to 59 of the Australian Consumer Law then to the extent that Supplier fails to comply with the statutory guarantee, Supplier’s liability is limited to one or more of the following, at Supplier’s option:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired,
(v) unless it is not fair or reasonable for Supplier to rely on this term of the agreement.
5.2 Where Customer is entitled to a statutory guarantee under sections 60 to 62 of the Australian Consumer Law then to the extent that Supplier fails to comply with such statutory guarantee, Supplier’s liability is limited to, at Supplier’s option:
(i) supplying the services again; or
(ii) payment of the cost of having the services supplied again,
(iii) unless it is not fair or reasonable for Supplier to rely on this term of the agreement.
5.3 To the extent permitted by law, Supplier expressly excludes any warranty:
(i) that the Goods can be used, or have particular characteristics when combined with, or attached to, other products, in a particular way, unless it is stated on the Order;
(ii) that the Goods comply with any particular law or standard, or have any particular certification, permit or approval, unless it is stated on the Order.
5.4 The Customer acknowledges and agrees that:
Supplier is not responsible for any defects caused by:
(i) Customer or any person acting on behalf of Customer, or by any breach of this Order by Customer;
(ii) fair wear and tear;
(iii) the Goods or Services provided under this Agreement are not of a kind that are ordinarily acquired for personal, domestic or household use or consumption;
(iv) it has not relied on any oral representation that is not reduced to writing and included on the Order, or any written representation (including any representation on a website or in a brochure) that is not stated on the Order;
(v) it is not reasonable for Customer to rely on Supplier’s skill and judgment to guarantee that any Goods or Services are fit for a particular purpose or that any particular outcome will be achieved as a result of any Services, or any product that results from any Services unless that particular purpose or outcome has been stated on the Order;
(vi) to the extent permitted by law, all illustrations, drawings, advertisements, catalogues that provide colours, measurements, weights, operational pressures, tolerances or capabilities are approximations only, and if Customer needs a particular colour, measurement, weight, operational pressure, tolerance or capability this must be set out on the Order;
(vii) it has used its own skill and judgment and relied on its own expertise in making the final selection and purchase of the Goods and Services, and has not made any particular use, requirement or outcome known to Supplier other than that stated on the Order;
(viii) it will comply with all applicable Federal, State and local laws, ordinances, regulations, rules and orders in performing its obligations under the Order.
6. LIMITATION OF LIABILITY AND INDEMNITY
6.1 Where clauses 5.1 and 5.2 do not apply:
(i) to the extent permitted by law and subject to clause (b), Supplier’s liability to Customer in contract, tort (including negligence), breach of statutory duty or otherwise, under an Order is limited to direct losses that do not exceed the amount paid under the Order and, no more than $50,000 in aggregate for any and all Orders made under the Terms and Conditions.
6.2 Supplier is not liable for:
(i) any indirect or consequential loss, including loss of profits or revenue, pure economic loss or loss of goodwill; or
(ii) any loss, damage or expense that would not be suffered by any other person acquiring the Goods or Services.
6.3 Customer must at all times indemnify and hold harmless Supplier, its officers, employees and agents (those indemnified) from and against any loss, damage, expense (including legal expenses on a full indemnity basis expenses) or liability incurred or suffered by any of those indemnified and all actions, proceedings, claims or demands made against those indemnified to the extent that they were caused directly or indirectly by:
(i) a breach by the Customer, its agents or contractors of the Customer’s obligations under any Order;
(ii) any third party claim arising out of or in connection with the Goods or Services, except for a claim under the Australian Consumer Law that cannot be executed by contract;
(iii) any wilful, unlawful or negligent act or omission of the Customer, its agents or contractors.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Customer acknowledges and agrees that nothing contained or implied in this Agreement or an Order gives the Customer ownership of, or gives rise to, any proprietary interest of Customer in Supplier’s name, domain name, trademarks, trade names or any other intellectual property rights of Supplier and its related bodies corporate, including any intellectual property rights in any Goods or item delivered through any Services. Customer must not seek, or claim, any intellectual property rights, in any Goods or item delivered through any Services. Customer must not use, copy, adapt, translate, manufacture or otherwise exercise any intellectual property right in any of Supplier’s patents, trademarks, service marks, logos, industrial designs, illustrations, drawings, proposals or copyright materials, without the express written consent of Supplier.
7.2 Upon receipt of full and final payment for the Services under an Order, Supplier grants Customer a perpetual, non-transferable, worldwide, royalty free, license to use any materials that were newly created during the performance of the Services and delivered to Customer as part of the deliverables under that Order, for the internal use of Customer subject to any terms applied at the time of the Services.
8.1 Each party must use any Personal Information (as defined by the Privacy Act 1998 (Cth)) of which it becomes aware in connection with the Agreement in accordance with law, including the Privacy Act 1998 (Cth) and all other privacy legislation. Customer warrants that it has obtained the informed consent from each person about whom Supplier obtains Personal Information in connection with this Agreement or any Order so that Supplier, its related bodies corporate, and their respective employees and contractors to be able to use, store, manipulate or otherwise deal with the Personal Information for any purpose connected with the Agreement or the Order.
8.2 Customer must provide to Supplier upon request any information required by Supplier to assess the creditworthiness of Customer. Customer consents to Supplier obtaining from, or providing to any credit provider named in a credit report, credit reporting agency, or any person Customer authorises Supplier to contact, any of Customer’s personal or corporate information, including information relating to creditworthiness, credit standing, credit history or credit capacity, for the purposes of assessing, or providing information in relation to, Customer’s creditworthiness and/or deciding whether to grant or continue to provide credit approval to Customer.
9.1 Supplier may, by written notice, immediately terminate or suspend performing its obligations in connection with any Order if:
(i) Customer has not paid any amount due by the due date;
(ii) Customer commits any breach of any provision of the Order and has failed to remedy such breach within 7 days of receipt of written notice requiring it to do so.
9.2 Customer may, by written notice, immediately terminate any Order if Supplier commits any material breach of any provision of the Order and has failed to remedy such breach within 30 days of receipt of written notice requiring it to do so.
10.1 Customer may not assign, transfer or novate any Order in whole or in part without first obtaining Supplier’s written consent.
10.2 To the extent permitted by law:
(i) the Agreement records the entire agreement between the parties in relation to its subject matter. The Agreement supersedes all previous negotiations, understandings or agreements in relation to the subject matter and expressly excludes the pre-printed terms and conditions of Customer purchase order (if any);
(ii) all conditions, warranties, guarantees or rights, including any implied by custom or other circumstance, that are not expressly specified in the Agreement, are excluded.
10.3 Any Order may only be modified by a written agreement signed by the parties. The Terms and Conditions may only be varied by an Order, if the Order specifically states that the relevant clause in the Terms and Conditions is being modified, and a director of Supplier initials the specific change and signs the Order. To the extent of any inconsistency between the details on any Order and the Terms and Conditions, the Terms and Condition prevail. No waiver by either party of any breach of any of the terms and conditions shall be construed as a waiver of any succeeding breach of the same or any other term or condition. Any waiver must be in writing and signed by the party exercising the waiver.
10.4 If any provision of an Order offends any law applicable to it and as a consequence is illegal, invalid or unenforceable then:
10.5 where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result;
10.6 in any other case, the offending provision must be severed from the Order in which event the remaining provisions of the Order operate as if the severed provision had not been included.
10.7 Nothing in any Order may be construed as creating a relationship of partnership, of principal and agent of trustee and beneficiary or employer and employee.
10.8 The Order may be signed in any number of counterparts, each of which shall be an original, and any one of which shall be deemed to be validly executed if evidenced by a facsimile copy of the executing party’s signature with the same effect as if the signatures were on the same document. The parties consent to the use of electronic means to communicate and otherwise deal under this Agreement.
10.9 The parties’ rights and remedies under the Order are cumulative and there is no obligation to exercise a particular remedy. If a party is in breach of any Order, the non-breaching party may avail itself of all other rights, remedies and causes of action available at law, in equity or otherwise.
10.10 Any notice that is to be given under an Order must be dated, in writing and signed by the person giving the notice. Any notice must be hand delivered to the address, sent by prepaid post to the address or sent to the facsimile number of the recipient as set out in Order. Each party must promptly notify the other of any change of address or contact details, and such details shall be incorporated into the Order from the date following the date of receipt.
10.11 Any notice sent in accordance with the Order is deemed to have been received:
(i) if hand delivered; on the date of delivery;
(ii) if posted within Australia; 3 business days after the date of posting;
10.12 if sent by facsimile; at the time set out on a transmission report from the machine from which the facsimile was sent which states that the facsimile was sent in its entirety to the facsimile number of the recipient, provided that that time is before 4.00 pm on a business day in the place of receipt, if the time is later than that the facsimile will be deemed received on the next business day in the place of receipt.
10.13 If any dispute arises under an Order:
the party raising the dispute must provide the other written notice of the nature of the dispute (Dispute Notice), the issues involved and the remedy sought. The other party must provide a written response to the notice addressing the issues in the Dispute Notice and providing details of its own position within 10 days of receipt of the Dispute Notice;
10.14 persons with authority to resolve the dispute from each party must meet and attempt to resolve the dispute through good faith negotiations within 25 days of the issue of the Dispute Notice;
10.15 if, for any reason, the parties have not resolved the dispute within 40 days of the issue of the Dispute Notice (or such longer period as is agreed by the parties) then unless the parties agree otherwise in writing, the dispute must be referred to LEADR (Level 1, 13-15 Bridge Street Sydney NSW 2000) for mediation by a person who is independent of the parties and who is appointed by agreement by the parties, or in absence of agreement within 7 days of the referral to LEADR, a person who is appointed by the Chair of LEADR or his/her representative. Any mediation will be conducted in accordance with the LEADR Mediation Rules;
10.16 if, for any reason, the parties have not resolved the dispute within 60 days of the issue of the Dispute Notice (or such longer period as is agreed by the parties) then, either party may commence legal proceedings without following the process under sub-clauses (a) to (c) if they are seeking urgent equitable relief.
10.17 All Orders are governed by the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia and any courts competent to hear appeals from those courts.
- Agreement means these Terms and Conditions and, in relation to a particular Order, the details of the transaction that are set out on the Quotation and any document referred to on the Quotation.
- Australian Consumer Law means The Australian Consumer Law Schedule to the Competition and Consumer Act 2010 (Cth)
- Customer means the legal entity that is described as the ‘Customer’ on the Quotation.
- Deliver (Delivered and Delivery shall be interpreted accordingly) means for Supplier to deliver the Goods to the Customer’s delivery address during the hours of 9 am to 5.30 pm Monday to Friday on any day that is not a public holiday at the delivery address (or during such other time as is agreed by Customer).
- Expected Delivery Date means that date that is stated on the Quotation as the date when Supplier expects to deliver the Goods or commences providing the Services (or if no date is stated, such date as it is reasonable to expect Supplier to Deliver the Goods or commence to provide the Services), such date to be varied in accordance with this Agreement.
- Good means the product that is provided by Supplier as described on the Order.
- “including” and “includes” are not words of limitation.
- Order means a binding agreement between Supplier and Customer for the supply of Goods and/or Services on the provisions of the Terms and Conditions and the Quotation.
- Quotation means a price quoted on a website or any other document, including a document created by Supplier (hard copy or in electronic format) and provided to Customer which includes the details of the order, including the description of the Goods or Services, the quantity, specifications (which may be described in an attachment, e.g. manufacturer’s brochure), the Expected Delivery Date, the Customer’s delivery address, the price of the Goods, any applicable delivery, insurance or other fees, GST, and any special terms that apply to the Order which are added to the Quotation by Supplier.
- Service means any design, consulting, hire or maintenance services that are provided by Supplier as described on the Order.
- Supplier means Go Live Australia ABN 82 167 918 005.