Terms & Conditions

 

1. Interpretation

The following words have the following meanings in these Conditions, unless the context requires otherwise:

“Contract” means the agreement between the Purchaser and the Supplier for the supply of the Goods on these Conditions and includes the details of the Goods appearing on the Purchase Order; “Conditions” means the terms and conditions set out in this document; “Goods” means exhibition stands, display units, printed materials and all other goods and/or services ordered in the Purchase Order or supplied by the Supplier; “GST” has the same meaning as in the GST Law; “GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth); “Intellectual Property” means any patent, registered design, trade mark, copyright or any other industrial or intellectual property rights; “Loss” means any loss, liability, damage, expense or cost whatsoever and includes (without limitation) indirect or consequential loss or damage, loss of profits or business opportunity, and damage to equipment or property; “Purchase Order” means a purchase order or alternative form of order or offer to purchase provided by the Purchaser to the Supplier; “Purchaser” means the person (including its successors, personal representatives and permitted assigns) who acquires the Goods from the Supplier, and where this consists of more than one person the obligations in the Contract are deemed to be joint and several; and “Supplier” (or “The Display Builders”) means The Display Builders Australasia Pty Limited ACN 117 834 321 and its associated entities (as that term is defined by the Corporations Act 2001 (Cth)) including, without limitation, the company identified in any invoice, and their respective shareholders, directors and officers.

2. Terms and Conditions of Trade

These terms and conditions (“Conditions”) apply to all supplies made by the Supplier to the Purchaser. Where the Purchase Order purports to be made on or subject to terms and conditions other than these Conditions, the Purchaser agrees that such other terms and conditions are disregarded and form no part of the Contract unless the Supplier agrees otherwise in writing.

3. Quotations and purchase orders

Any quotation made by the Supplier is not an offer to sell, and no Purchase Order given in pursuance of any quotation will bind the Supplier unless and until the Supplier accepts such Purchase Order in its absolute discretion. All quotations are subject to withdrawal or variation by the Supplier at any time prior to acceptance of a Purchase Order. 

If the Purchaser has provided the Supplier with a forecast of future requirements or has provided to or accepted from the Supplier a specification of the Goods, the Purchaser acknowledges that the Supplier will be entitled to rely on the accuracy of such forecast(s) and/or specification(s) for the purpose of ordering materials and to arrange its people and other resources so as to be able to meet those forecast and/or specified requirements. 

In the event that the Supplier deems any such forecast and/or specification to have been materially changed, the Supplier shall be entitled to invoice the Purchaser for all costs, expenses or losses which result from the Supplier having relied on the earlier forecast and/or specification. Such invoice will be subject to the normal terms of payment applying to the Purchaser. 

The Supplier reserves the right to reject any changes to specifications of existing orders received less than 30 days prior to the required commencement date. Any changes to the plans and specifications after the Purchase Order has been accepted by the Supplier must be agreed in writing, and additional fees may apply. 

4. Fees and Payment Terms

Terms of payment are as follows:

a) For all domestic orders of $15,000.00 plus GST or under, payment in full is required at the time that the Purchase Order is accepted by the Supplier;

b) For all international orders, payment in full is required at the time that the Purchase Order is accepted by the Supplier;

c) For all domestic orders above $15,000.00 plus GST, a deposit of 60% of the value of the Purchase Order is payable at the time the Purchase Order is accepted by the Supplier. The balance, including any variation fees or other fees payable, is due on completion of installation.

If payments are not made within the above terms, the Supplier is entitled to calculate and charge interest at a rate of 10% per annum calculated daily.

5. Default

If the Purchaser defaults in payment, or an application is made to a court to wind up the Purchaser, or a receiver or administrator is appointed to manage the affairs of the Purchaser, or the Purchaser makes or proposes to make any arrangement with its creditors, then the Supplier may, without prejudice to any other remedy that may be available to the Supplier, at its option withhold further deliveries of Goods, terminate the Contract and may recover from the Purchaser, at a minimum, reasonable compensation for materials and/or Goods purchased and ordered and labour expended in complying with the Purchase Order. The Supplier will not be liable to the Purchaser for any Loss or damage the Purchaser suffers as a result of any exercise by the Supplier of its rights under this clause.

6. Delivery and Risk

The Supplier will use all reasonable endeavours to deliver the Goods by the date specified in the Purchase Order but will not be liable in any way should delivery not be made on this date. Delivery periods specified shall always be non-binding.

Delivery of the Goods shall be effected when the Goods are delivered in the form and manner agreed by the Supplier. Risk in the Goods passes to the Purchaser at the time of delivery. Delivery to the Purchaser is deemed to occur at the time of delivery to the Purchaser or its agent at the location agreed by the Supplier and is not affected by any subsequent return of the Goods by or as directed by the Purchaser to the Supplier or the Supplier’s agent for storage, including storage for which a cost is levied by the Supplier.

Any over- or under-delivery of up to 10% of the Goods shall be permissible. Over- or under-deliveries beyond this shall be subject to agreement with the Purchaser.

7. Loss or Damage to Goods

If Goods are lost, break down or are damaged, the Purchaser must immediately notify the Supplier of the details. Notification shall not absolve the Purchaser from its obligations under these Conditions. In the event that the Goods break down or become unsafe to use, the Purchaser shall immediately stop using the Goods and take all necessary steps to prevent the Goods from sustaining any further damage. The Purchaser must also take all steps necessary to prevent injuries from occurring to any person or property as a result of the condition of the Goods and must not repair or attempt to repair the Goods without the Supplier’s prior written consent. If the Goods are lost or damaged, and the loss or damage to the Goods is caused by the negligence or act or omission of the Purchaser or the breach of any of these Conditions by the Purchaser, the Purchaser shall without limitation be liable for the following:

  1. Any costs incurred by the Purchaser in repairing or replacing the Goods;

  2. Hire charges for the Goods until the Goods are replaced or repaired;

  3. Any other costs whatsoever incurred, or loss suffered by the Purchaser as a result of the damage to or loss of the Goods.

8. Cancellations

Any request by the Purchaser for cancellation of a Purchase Order must be in writing and may be delivered by post, hand delivery, facsimile or email. The Purchaser is liable to reimburse the Supplier for the costs it has incurred for labour and materials in fulfilling the Purchase Order up to the date the request for cancellation is received by the Supplier, together with the Supplier’s loss of profit resulting from the cancellation of the Purchase Order.

9. Force Majeure

Neither party is liable for any Loss incurred by the other party as a result of any delay or failure to perform any of these Conditions as a result of any circumstance beyond the party’s control, including but not limited to any strike, lock-out, labour dispute, act of God, fire, flood, accidental or malicious damage, shortage of resources, or breakdown in machinery.

An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which accrued prior to the occurrence of that event.

During the continuance of such circumstance the obligations of the party affected, to the extent they are affected by the circumstance, are suspended and resume as soon as possible after the circumstance has ceased to have effect.

10. Supplier’s Liability

a) All representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied in these Conditions are expressly excluded to the fullest extent permitted by law. The Purchaser acknowledges that neither the Supplier nor any person acting on the Supplier’s behalf has made any representations or given any promise or undertaking in relation to the quality of the Goods, their fitness for purpose or their usage.

b) Nothing in these Conditions is to be interpreted as having the effect of excluding, restricting or modifying any condition or warranty, or right or liability implied by any applicable legislation (including the Competition and Consumer Act 2010 (Cth)) into the Contract, if such exclusion, restriction or modification would be void or prohibited by the legislation.

c) To the extent that the Supplier breaches any condition or warranty implied into the Contract and which cannot be excluded, or breaches any condition or warranty expressly included in the Contract, then the Supplier’s liability is limited to, and completely discharged by, at the Supplier’s discretion:

i. replacement of the Goods that are the subject of the breach, or supply of equivalent goods; or

ii. payment of the cost of replacing the Goods or acquiring equivalent goods; or

iii. repair of the Goods; or payment of the cost of having the Goods repaired;

d) Or in the case of services, to:

i. supply of the services again; or

ii. payment of the cost of having the services supplied again.

e) Subject to the above terms, the Supplier is not liable to the Purchaser (or to any third party claiming through the Purchaser) for any Loss caused by any act or omission of the Supplier, its employees or agents, and whether based in negligence or other tort, contract or otherwise.

f) In no event shall the Supplier be liable for indirect or consequential losses (including loss of production, profit, goodwill or reputation).

11. Description and Specifications

a) Whilst every effort is made to ensure their accuracy, the descriptions, illustrations and material contained in any catalogue, price list, brochure, leaflet, specification sheets, electronic communications or other descriptive matter provided by or on behalf of the Supplier represent the general nature of the items described therein and shall not form a part of any order or agreement or amount to any representation or warranty.

b) The Purchaser warrants that any goods or other material, including any packaging or artwork manufactured, constructed or supplied by the Supplier which incorporate or are otherwise based in whole or in part upon designs, drawings, specifications or other information or material supplied to the Supplier by or on behalf of the Purchaser shall not infringe any Intellectual Property rights of a third party or breach any law. The Purchaser indemnifies the Supplier from and against any action that may be brought against or Loss suffered by the Supplier as a result of a breach of that warranty.

c) The Supplier reserves the right to make any changes to designs, drawings or specifications supplied to the Supplier by the Purchaser, and/or Goods ordered by the Purchaser, which are required to comply or conform with any applicable safety or statutory requirements or which do not materially affect the quality or usage of the Goods by the Purchaser.

d) The Supplier does not warrant or guarantee that any Goods manufactured, constructed or supplied by the Supplier which incorporate or are otherwise based in whole or in part upon any designs, drawings, specifications or other information or material supplied to the Supplier by or on behalf of the Purchaser will achieve any standard or performance or any capacity whatsoever, other than prescribed by law.

e) The Supplier will not be liable for any defect in the Goods arising from any designs, drawings, specifications or other information or material supplied to the Supplier by the Purchaser.   Where the Purchaser approves any artwork or proofs submitted by the Supplier, the Supplier will not be liable for any errors or inaccuracies subsequently discovered.

f) Any advice, recommendation, information or assistance provided by the Supplier in relation to the Goods or their use or application is given in good faith and is believed by the Supplier to be appropriate and reliable. Any such advice, recommendation, information or assistance is provided without liability or responsibility on the part of the Supplier.

g) In addition to any right of lien which the Supplier may be entitled to by law, the Supplier will have a general lien over any designs, drawings, specifications or tooling supplied to the Supplier by or on behalf of the Purchaser which is in the Supplier’s possession until all monies owing by the Purchaser to the Supplier on any account have been paid in full.

12. Intellectual Property

Subject to the remainder of this clause 12, all right, title and interest in and to any goods, materials or developments in which copyright or other Intellectual Property subsist created by or on behalf of the Supplier, created jointly with the Purchaser, or otherwise supplied by the Supplier to the Purchaser, shall vest absolutely in and remain the sole property of the Supplier. 

The supply of Goods shall imply a licence to the Purchaser to use the same but for no other purpose. The Purchaser undertakes not to utilise, copy, reproduce or disclose or permit others to utilise, copy, reproduce or disclose any such Intellectual Property without the prior written consent of the Supplier. 

The Supplier acknowledges that the Purchaser retains all right, title and interest in and to Intellectual Property of the Purchaser supplied to the Supplier under any Contract. The Purchaser grants the Supplier a perpetual, irrevocable, royalty free licence under such Intellectual Property for the purpose of making all supplies contemplated by any Contract.

The Supplier makes no representation or warranty that the Goods supplied or the use of such Goods or items made from the Goods either alone or in conjunction with other goods will not infringe any Intellectual Property right. The Purchaser will notify the Supplier of any claim or suit involving the Purchaser in which such infringement is alleged and if the Supplier considers itself to be affected it will be entitled to control the defence of such infringement allegation.

13. Artwork, Printing

a) Without limiting clause 12, the Purchaser indemnifies the Supplier from and against all claims, demands, suits and costs to which the Supplier may become wholly or partially liable by reason of any artwork required to be done in accordance with the Purchaser’s specifications involving an infringement or alleged infringement of any Intellectual Property and any Loss that results therefrom.

b) If the Purchaser supplies the Supplier with any artwork for use on or in conjunction with packaging supplied by the Supplier, then use or reproduction by the Supplier of that artwork is not to be construed as a warranty or representation that it complies with the relevant legislation (in Australia or elsewhere) in relation to labelling, and the Purchaser hereby indemnifies the Supplier in relation to any Loss arising as a result of the use or reproduction of such artwork.

14. Insurance
The Purchaser will maintain at its own expense all appropriate policies of insurance required by law and including:

a) for theft and damage to the Equipment hired in an amount not less than the full replacement cost of the Equipment;

b) for liability, property and casualty insurance coverage for an amount not less than $20,000,000.00 to indemnify the Supplier and its Equipment against all claims, loss or damage whatsoever.

15. The Purchaser’s Obligations

The Purchaser will:

a) bear responsibility for the Goods supplied from the time of delivery until collection by or return to the Supplier;

b) upon installation, delivery or collection of the Goods immediately examine the Goods to satisfy itself as to its condition and suitability and fitness for the purpose to which it requires the Goods. In accepting the Goods, the Purchaser acknowledges that it has duly examined the Goods and has satisfied itself as required;

c) assume the risk of and indemnify and hold the Supplier harmless from and against any and all property damage and personal injury resulting from:

i. the use of the Goods;

ii. contact with underground cables, pipes, services or other obstructions; and

iii. all necessary surface repairs.

d) use the Goods in a proper, safe and prudent manner and only for the purpose and capacity for which it was designed.

e) ensure the Goods are returned or ready for collection by the Supplier in a clean, dry and properly packed condition and, if being collected, are readily accessible. The Purchaser will pay for all cleaning or drying costs and for any damage resulting from not properly drying, cleaning and/or packaging the Goods;

f) obtain any required approvals or permits and pay any fees associated with the use of the Goods.

16. Miscellaneous

  • Any of these Conditions may be varied in writing at any time by the Supplier.

  • The Supplier may at any time set-off any amounts owed by it to the Purchaser against amounts owed by the Purchaser to the Supplier on any account whatsoever.

  • Failure by the Supplier to insist on strict performance of any of these Conditions shall not be deemed a waiver thereof. The waiver by the Supplier of any provision, or breach of any provision, of the Contract is not to be construed as a waiver of any other provision or a breach of any other provision, or of any further breach of the same or any other provision of the Contract.

  • If any provision of the Contract is unenforceable or void either in whole or in part for any reason, then that provision (or part) is deemed to be deleted without in any way affecting the validity or enforceability of any other provision.

  • The Contract constitutes the entire agreement between the Purchaser and the Supplier and no modification is binding in relation to the Contract unless agreed to in writing by the Supplier.

  • Any dispute arising out of the Contract is governed by the laws of the State of New South Wales, Australia, and the Purchaser submits to the jurisdiction of and agrees to be bound by the courts of that State.

  • All costs and expenses incurred by the Supplier to remedy any breach by the Purchaser of these Conditions or any Contract shall be recoverable from the Purchaser in addition and without prejudice to the Supplier’s right to damages for breach of these Conditions or any Contract.

  • The Purchaser will not divulge to any person any information provided by the Supplier in relation to the Contract without the prior written consent of the Supplier, except as required by law or for the purposes of obtaining professional legal, financial or taxation advice.

If you have any questions about our Terms and Conditions, please contact Kathy Welsh at kathy@displaybuilders.com.au.