Outdoor Kitchen Terms & Conditions
- These Terms and Conditions will apply to all quotes We provide and all orders from 1 July 2018.
- From that time, any prior representations, statements or promises in relation to Our supply of outdoor kitchen goods and services are merged in and superseded by these Terms and Conditions and You may not rely on them.
- We may in our discretion vary these Terms and Conditions by reasonable prior notice to You, including by publishing revisions on the Website. All such variations will apply to any and all orders You place with Us after the date We notify You of the change or publish the revisions on the Website.
2. Service Options
- We offer two levels of service “Basic” and “Full.” Your and Our responsibilities for each level of service are set out below:
|Selecting the products and appliances to be installed, including deciding product and material finish
|Correctly measuring the proposed installation location (the Site).
|Specifying all dimensions and quantities.
|Placing orders with Our suppliers.
|Delivering all goods to the Site.
|Assembling all goods at the Site.
|Assessing the suitability of the Site for installation of Your selected goods, including with reference to the requirements of all laws and all applicable Australian Standards.
|Preparing the Site prior to installation, including to ensure compliance with all laws and all applicable Australian Standards.
|Connecting power, water, waste, plumbing and gas.
- We are not licenced electricians or licensed gasfitters. We do not connect electricity or gas to goods You order from Us and Our services do not include advice or assistance regarding electrical or gas safety.
- You are responsible for:
- assessing the suitability of the Site for installation of Your selected goods, including with reference to the requirements of all laws and all applicable Australian Standards such as AS 5601.1:2013 and AS 1668.2:2012;
- preparing the Site for safe installation and use of Your selected goods, including to ensure safe operation in accordance with all laws and all applicable Australian Standards such as AS 5601.1:2013 and AS 1668.2:2012;
- arranging for the supply of power, water, waste, plumbing and gas to the Site;
- ensuring that:
- all gasfitting work is performed by an appropriately licenced gas fitter;
- all electrical work is performed by an appropriately licenced electrician;
- all electricians and/or gas fitters who perform work in relation to Your selected goods submit to the appropriate authorities and provide You with copies of all notices and/or certificates required by law in relation to electrical and/or gasfitting work.
- If We ask You to, You must produce to Us a copy of all notices and/or certificates required by law in relation to the connection of electricity and/or gas to any goods We supply to You.
- We reserve the right to in our discretion cancel Your order without notice and/or delay delivery of any goods to the Site for any reason relating to gas or electrical safety.
- You may request a free, custom quote by contacting us on 1800 750 794 or visiting the Website and completing Our online quote form.
- We recommend that You visit Our physical showroom and/or request swatches before You request a quote, including to view finished materials. We do not exchange or refund for change of mind or incorrect choice, so visiting Our showroom and/or ordering swatches is the best way to avoid disappointment.
- We must visit Your preferred Site before We provide a “Full” service quote.
- Credit Check
- By asking Us to provide You with a quote, You irrevocably authorise Us to make, directly or through third parties, any enquiries that We may consider necessary to verify Your identity and/or assess Your ability to pay to comply with these Terms and Conditions and/or Our ability to collect payment.
- Without limiting the generality of clause 4
- the initial enquiries We may make about You include:
- obtaining and using any report or information from a credit reporting agency and/or other credit providers which contain information about Your activities or credit worthiness; and
- disclosing and/or exchanging personal information about You with a credit reporting agency and/or with other credit providers;
- if You fail or refuse to comply with these Terms and Conditions, We may:
- report details of the failure or refusal to: any credit reporting agency; any agent or professional service provider who We may appoint to act on Our behalf; and/or any potential assignee of Ours; and
- exchange details regarding the failure or refusal with other credit providers.
- the type of information that We may disclose to a credit reporting agency before, during and after You become our customer includes:
- information in these Terms and Conditions and particulars of Your account with Us;
- that We provide credit to You;
- that payments due from You to us are overdue and/or are in collections;
- that payments are no longer overdue;
- that a cheque of Yours drawn in our favour has been dishonoured more than once; and/or
- that You have defaulted in connection with Your obligations.
- the initial enquiries We may make about You include:
- You may accept a quote by contacting us on 1800 750 794 or at email@example.com.
- If You accept a quote, We will assume that You have read and understood these Terms and Conditions and agree to be bound by them.
- We will contact You by email, after You accept Our quote, to confirm Your order (Order Confirmation Email), including to provide an indicative date for delivery and installation. We will apply Our best efforts to ensure that We are able to begin work on the indicative installation date, however, this may not always possible and We may need to reschedule. We will notify a firm installation date to You, as soon as possible.
- We maintain limited stock. In most instances, We will order goods from Our suppliers after You accept Our quote. For these reasons, We do not guarantee delivery or installation or by any particular time. You agree that We shall not be liable to You for any Claim or Liability relating to delayed delivery or installation.
- You may cancel Your order within three (3) Business days after the date of the Order Confirmation Email.
- You may downgrade Your order from a “Full” to “Basic” service at any time prior to or at the time when we contact You to book installation.
- You may at any time ask Us to agree to change details of Your order, by sending an email to firstname.lastname@example.org explaining Your required change in as much detail as possible. We will not accept verbal requests for change. If We agree to Your request, We will send you an email setting out the terms of Our consent including as to any change to price and what else (if anything) We will need You to do before the change will take effect. If You do not accept the terms of Our consent, We will proceed to fulfil Your order as originally placed.
- If you select the “Basic” service, Our terms of payment are strictly:
- 25% within three (3) Business Days after the date of the Order Confirmation Email;
- a further 75% within three (3) Business Days from the day We contact You to book delivery or the Business Day prior to the date delivery is scheduled (whichever is the earliest).
- If you select the “Full” service, Our terms of payment are strictly:
- 25% within three (3) Business Days after the date of the Order Confirmation Email;
- a further 50% within three (3) Business Days from the day We contact You to book installation or the Business Day prior to the date installation is scheduled (whichever is the earliest); and
- the balance (25%) within three (3) Business Days of completed installation or, where We exercise Our rights under clause 5, within three (3) Business Days of the day We ask to be paid the balance
- Any GST levied or imposed on Us by law will be invoiced to You in addition to the amount quoted.
- Site ACCESS AND safety
- In this clause 7:
Dangerous Substance means a dangerous substance or security sensitive substance within the meaning of the Dangerous Substances Act 2004 (ACT) and its associated regulations, or any equivalent legislation in the jurisdiction in which the Site is situate.
Hazard means any fact, matter, circumstance or thing relating to the Site or any person on the Site which a reasonable person may perceive to be or to constitute an actual or potential risk to health and safety.
- You represent and warrant, as an essential condition of Our decision to provide You with a quote, that:
- You are not aware of the presence of any Dangerous Substance on the Site or any Hazard; or
- in the alternative, at or prior to the time that We provided You with Our quote, You fully and frankly disclosed to Us all known information about all Dangerous Substances on the Site and/or any Hazard.
- You must provide Us with access to the Site at all hours during which We may lawfully conduct the work on the Site, with reference to the Environment Protection Regulation 2005 (ACT) and any other equivalent legislation in the jurisdiction in which the Site is situate. You acknowledge that this may entitle Us to be on site as early as 6.00am and as late as 8.00pm Monday through Sunday. You also acknowledge that any refusal or failure by You may cause delays to completion of the work including in particular, but without limitation, the need to reschedule incomplete work for completion at a substantially later date. You release and agree to hold us harmless from and against, any Claims and Liabilities (including Consequential Loss) associated with any delays caused by Your breach of this clause.
- While the work is in progress, We may direct You in relation to any aspect of safety in relation to the Site and You must comply wherever it is lawful and reasonable to do so. Compliance with any such direction will not relieve You of Your independent obligations in relation to Our safety, Your safety and the safety of anyone else who is or may be present on Site.
- While the work is in progress, We may also request You to remove from the Site any person who engages in behaviour or conduct which, in Our reasonable opinion constitutes or may potentially constitute a risk to the health and safety of any person on the Site (including the person who is to be removed).
- Default by you
You agree that if You:
- dispute all or any part of payment to Us;
- fail or refuse to pay any amount due to Us, in full and on time;
- breach these Terms and Conditions;
We may at Our discretion suspend performance of the work until such time as the dispute is resolved or breach is remedied to Our reasonable satisfaction, and all outstanding money is paid to Us in full and without deduction or set-off. You agree that We will not be liable for any Claim or Liability relating to or arising from any decision by Us to suspend the work in accordance with this clause.
- Interest on Late Payments
Any money which You do not pay to Us on its due date shall attract simple interest at the Specified Rate calculated daily on the basis of a 365 day year. All interest which accrues under this clause is due and payable by You immediately upon demand by Us. This clause shall not merge on entry of judgment or on cancellation of any order.
- Legal Costs
You agree to pay to Us within seven (7) days of demand all Legal Fees incurred or paid by Us in respect of or in connection with:
- any failure by You to pay money in connection with any order You place with Us either in full, or on time;
- the exercise or purported or attempted exercise of any of Our rights arising from or in connection with these Terms and Conditions or for the preservation of those rights; and/or
- the enforcement of any obligation You have to Us pursuant to or in connection with these Terms and Conditions.
9. Ownership & Risk
- Risk in all goods We agree to supply to You (Ordered Goods) will pass to You three (3) Business Days after the date of the Order Confirmation Email.
- You agree that You will not become the owner of any Ordered Goods until You have paid to Us in full all amounts due and payable by You in connection with their supply. Until that time:
- You will hold all goods as Our bailee only;
- You and Your Successors must not claim that You are the owner of the Ordered Goods;
- You must keep all Ordered Goods readily identifiable as Our goods and clearly distinguishable from Your goods;
- You must not deface, remove, vary or erase any identifying marks, plate, number or notice on any Ordered Goods;
- You must maintain a policy (or policies) of insurance covering loss of all Ordered Goods through fire, theft, accidental damage and any other insurable risk occurring at any location in Australia.
- If You default in connection with clause 2:
- We may, without prejudice to any of Our other rights take all steps necessary to recover the Ordered Goods from You, including entering any premises whether owned occupied by you or not, and recover all associated costs (including Legal Fees) from you as a debt immediately due and payable; and
- You irrevocably authorise Us to enter any premises owned or occupied by You for the purposes of recovering Ordered Goods which are not paid for.
- You agree that:
- clauses 2 and 9.3 shall enure for the benefit of the owner of the Ordered Goods from time to time which, You acknowledge, may be Us or may be a third party with whom we deal.
- clause 2 may be pleaded in bar to any claim that You are the owner of any Ordered Goods at any time prior to the date on which You have paid to Us in full all amounts due and payable by You under or in connection with these Terms and Conditions.
10. Condition & Use
- You should thoroughly inspect all Ordered Goods within the first two (2) Business Days after they are delivered into Your possession.
- You must notify Us in writing of any concerns You have about the condition of the Ordered Goods within the first two (2) Business Days after it enters Your possession.
- Where You do not issue notice to Us under clause 2, You will be deemed to agree that when You took possession of the Ordered Goods they were in good, clean, working order.
- You must at all times comply, and ensure that anyone else who uses Ordered Goods complies, with all Manufacturer’s Guidelines.
- You are responsible for any damage to Ordered Goods from any and every event whatsoever after delivery and/or installation, howsoever and by whosoever caused.
- If an Insolvency Event occurs We may, without prejudice to any of Our other rights and without any obligation to do so, cancel and/or suspend Your order effective immediately, or from a specified future date, by notice to You.
- Your liability to us shall not be discharged by any payment to Us which is later avoided or voidable by operation of law (including court order). Instead, We shall be restored to Our rights as if the relevant payment had not occurred.
- You indemnify Us and agree to keep us indemnified and to hold Us harmless from and against any and all Claims, Liabilities and Consequential Losses directly or indirectly relating to the occurrence of any Insolvency Event.
- You agree to upon demand by Us pay or reimburse to Us (or as We may in writing direct), all costs and expenses (including Legal Fees) incurred or paid by Us directly or indirectly arising in respect of or in connection with any Insolvency Event.
12. PPS Act
- You agree that:
- We take a security interest in the Ordered Goods and all proceeds of the Ordered Goods;
- these Terms and Conditions is a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPS Act); and
- for the purposes of section 20(1) of the PPS Act, the collateral is the Ordered Goods.
- You must not without our consent: offer; sell; dispose of; assign; sub-let; charge; mortgage; pledge; or otherwise deal with the Ordered Goods in any way.
- Except as described in clause 1, You must not grant or purport to grant a security interest in the Ordered Goods to any person.
- You undertake to do anything We may lawfully and reasonably ask You to do in order to:
- perfect Our security interest in the Ordered Goods and all proceeds of the Ordered Goods;
- give full effect to Our security interest in the Ordered Goods and all proceeds of the Ordered Goods; and
- ensure that Our security position, and rights and obligations, are not adversely affected by the PPS Act.
- You undertake not to do, cause or permit to be done anything which is inconsistent with Our security interest in the Ordered Goods and all proceeds of the Ordered Goods.
- You must not without Our consent register a financing statement or financing change statement in relation to Our security interest in the Ordered Goods and all proceeds of the Ordered Goods.
- You waive the right granted to You by section 157(1) of the PPS Act to receive notice of registration events in relation to any collateral which is commercial property.
- You agree that, to the extent the law permits, for the purposes of section 115(1) of the PPS Act:
- We may, but need not, comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4) of the PPS Act; and
- sections 142 and 143 of the PPS Act are excluded.
- You agree that, for the purposes of section 115(7) of the PPSA, We may but need not comply with sections 132 and 137(3) of the PPS Act.
- If the PPS Act is amended after the date these Terms and Conditions were prepared to permit You and Us to agree to not comply with or to exclude other provisions of the PPS Act, We may notify You that any of these provisions is excluded, or that we need not comply with any of these provisions, as notified to You by Us.
- You agree not to exercise Your rights to:
- make any request of Us under section 275 of the PPS Act; or
- authorise the disclosure of any information under that section; or
- waive any duty of confidence that would otherwise permit non‐disclosure under that section.
- Until We have received all money payable by You under or in connection with these Terms and Conditions, You must hold all proceeds of the Ordered Goods on trust for Us in a separate account maintained for Our benefit and, promptly on request, pay that amount to Us.
13. Legal Risk & Liability
- All liabilities, conditions, warranties and guarantees which We may exclude from Your dealings with Us are expressly negated.
- Including in particular, We make no warranty and give no guarantee that the goods You select will be fit for any particular purpose or for Your specific intended purpose. You must rely entirely on Your own enquiries, skill, experience and expertise to determine the suitability of the goods You order through Us.
- In the case of goods, We limit any Liability We may incur to You for failure to comply with Part 3-2, Division 1 of the Australian Consumer Law (except sections 51, 52 or 53) to at Our election either:
- replacement of the goods;
- supply of equivalent goods;
- repair of the goods;
- payment of the cost of replacing the goods or of acquiring equivalent goods; or
- payment of the cost of having the goods repaired.
- In the case of services, We limit any Liability We may incur to You for failure to comply with Part 3-2, Division 1 of the Australian Consumer Law to at Our election either:
- supplying the services again; or
- paying the cost of having the services supplied again.
Outdoor gas appliances, such as barbecues, camping stoves and patio heaters are designed for use in highly ventilated areas. When gas doesn’t burn properly, it produces toxic gases (eg carbon monoxide and nitrogen oxides) that are poisonous and can kill you.
Correct use of outdoor gas appliances, in highly ventilated outdoor areas, means the toxic gases will vent away quickly and safely without risk of harm.
Using outdoor gas appliances indoors, or in a confined space with limited ventilation, is very dangerous. Please actively consider this at all times. Including without limitation, be aware that some café blinds restrict airflow and ventilation and therefore should not be used to enclose the space around your operating outdoor gas appliance.
If a gas appliance has been marked for outdoor use only, do not use it indoors or in partially-enclosed areas without adequate ventilation.
Look for a warning label on the appliance or check the manufacturer’s instructions for more information.
- To the maximum extent permitted by law:
- any legislation that adversely affects Our obligations or the exercise by Us of a right or remedy under or relating to Our supply of goods and/or services is excluded from these Terms and Conditions;
- We limit Our maximum aggregate Liability to You in connection with Our supply of goods and/or services to an amount equal to the amount of money paid by You to Us under these Terms and Conditions;
- You indemnify Us and agree to keep us indemnified and to hold Us harmless from and against any and all Claims, Liabilities and Consequential Losses directly or indirectly relating to:
- any matter directly or indirectly relating to electrical and/or gas safety, including without limitation the matters that are the subject of the warning appearing above and things You are responsible for under clause 3;
- any other matter directly or indirectly relating to our supply of goods and/or services to You, except to the extent to which Our negligent, reckless or intentional act or omission caused or contributed to same; and
- You agree that We shall not in any circumstance be Liable to You for any Consequential Loss.
- Any amounts paid by Us under, and the value of any goods or services replaced, repaired or supplied by us in connection with, clauses 3 and 13.4, shall count towards calculation of Our maximum aggregate Liability as described in clause 13.5(b).
- Any liability of Us to You shall be reduced to the extent that You or Your Successors or Your Personnel caused or contributed to that liability.
- Any act or omission by Your Successors shall, for the purposes of and all purposes connected with these Terms and Conditions, be deemed to be an act or omission by You.
- As security for performance of Your obligations to Us, you charge in Our favour all of Your legal and equitable interest in property owned by You (or any one of you) now or in the future, solely or jointly with any other person. For this purpose ‘property’ means both real and personal property located in any State or Territory of the Commonwealth of Australia.
- You irrevocably authorise Us to lodge and maintain a caveat against any real property to which clause 1 applies until all amounts payable by You in connection with these Terms and Conditions are paid in full.
- You agree to deliver to Us within seven (7) days of demand any and all documents We may from time to time request You to sign, containing any such further terms as We or Our legal advisors may reasonably request, in order to give full intended effect to the security interest granted by clause 1.
15. Dispute Resolution
In this clause 15:
Condition Dispute means any dispute which relates in whole or in part to:
- the quality, condition, functioning, performance or suitability of Ordered Goods, at any time, including without limitation as to whether:
- Ordered Goods are operating, functioning or performing normally; and/or
- You or We have complied with Manufacturer’s Guidelines; or
- the quality or suitability of any services We have provided.
Expert Determination Rules means the expert determination rules from time to time approved by the Institute or, in default of such approval, as agreed by the parties.
Institute means the Resolution Institute Limited (ACN 008 651 232).
Mediation Rules means the mediation rules from time to time approved by the Institute or, in default of such approval, as agreed by the parties.
Negotiating Period means, in relation to any given Dispute, the period which is twenty (20) Business Days from the day after the date by which the relevant Notice of Dispute has been served on all parties, or such longer period as the parties may agree in relation to the particular Dispute.
15.2 Notice of Dispute
If You or We claim that a dispute has arisen directly or indirectly arising from, or in any way relating to, these Terms and Conditions (Dispute) then:
- either You or We (as the case may be) must promptly issue notice to Your or Us specifying the nature of the Dispute (Notice of Dispute); and
- neither You nor We may commence legal proceedings, including without limitation arbitral or regulatory proceedings, in relation to or connection with the Dispute, until clauses 3 and, where applicable, 15.4 and 15.5, have been fully complied with.
Immediately following issue of a Notice of Dispute You or We must endeavour in good faith to resolve the Dispute by negotiation as expeditiously as possible.
15.4 Expert Determination – Condition Disputes
Subject to clause 15.6, in the event that a Condition Dispute has not resolved to the reasonable satisfaction of both You and Us within the Negotiating Period then it must be submitted to an expert for determination in accordance with, and subject to, the Expert Determination Rules.
15.5 Mediation – other Disputes
Subject to clause 15.6, in the event that a Dispute other than a Condition Dispute has not resolved to the reasonable satisfaction of both You and Us within the Negotiating Period it must be referred to a mediator for mediation in accordance with, and subject to, the Mediation Rules.
Clauses 15.4 and 15.5 do not apply:
- in relation to any proceedings wherein You or We:
- seek urgent relief; or
- seek to recover of a debt or make a liquidated demand of less than or equal $25,000.00 excluding costs and interest; or
- if both You and We agree that the clause is not to apply to a given Dispute; or
- to any dispute to which the Building and Construction Industry (Security of Payment) Act 2009 (ACT) (or the equivalent legislation in any other jurisdiction in which the Site is situate) applies.
15.7 Continued performance of obligations
You must continue to perform Your obligations under these Terms and Conditions notwithstanding the existence of any Dispute.
16. Notices & Claims
- Any notice required to be given by these Terms and Conditions must be given, and any Claim must be made, in writing, by any one of the following means:
- by sending it by prepaid post to the last known place of residence, last known employment address or last known place of business of the party to be served, in which case it shall be deemed to be given and received two (2) Business Days after it has been sent;
- where available, by sending it by document exchange or prepaid post to the address of the solicitor of the party to be served, in which case it shall be deemed to be given and received two (2) Business Days after it has been sent;
- by sending it by ‘read’ and ‘delivery’ receipted email to the Email Address for Service, in which case it shall be deemed to be given and received on the Business Day immediately following the date it is sent; or
- by delivering it personally to the party to be served or to its solicitor, in which case it shall be deemed to be given and received on the day so delivered.
- A notice given, or a document signed or served, on behalf of any party by any director or company secretary or solicitor of that party shall be deemed to have been given, signed or served by that party personally.
- Any ‘read’ or ‘delivery’ receipt issued to any party seeking to serve any other party by email shall constitute sufficient and good proof of service for the purposes of these Terms and Conditions.
17.1 Digital Signatures
A document under or relating to these Terms and Conditions may be signed by a party using a Digital Signing Service.
- Every indemnity provided for in these Terms and Conditions is a continuing obligation, separate and independent from all other obligations.
- The indemnities provided for in these Terms and Conditions shall not merge on termination or expiry of these Terms and Conditions or entry of judgment.
- We may recover payment under an indemnity provided for in these Terms and Conditions before We make any payment in respect of which the indemnity is given.
17.3 Assignment & Novation
We reserve the right to assign Our rights under these Terms and Conditions, or to novate our rights and obligations under these Terms and Conditions, to any third party by notice to You in writing.
We reserve the right to subcontract Our obligations under these Terms and Conditions at any time.
17.5 Our Consent
- In these Terms and Conditions reference to Our consent or approval means Our express, prior, written consent or approval.
- Subject to any law to the contrary and unless these Terms and Conditions expressly provides otherwise, We may give or withhold consent or approval according to Our absolute discretion.
17.6 No Set-Off
You must not attempt to offset any alleged entitlement against any monies owing by You to Us in connection with these Terms and Conditions, and must not withhold payment by reason only that You claim the alleged entitlement.
17.7 Force Majeure
Any failure by Us to perform any obligation due to any act, event or cause (other than lack of funds) which is beyond Our reasonable control does not give rise to any liability other than payment of any monies owing and is not grounds for termination.
17.8 Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the laws from time to time applying in the Jurisdiction. You and We each submit to the exclusive jurisdiction of the Courts of the Jurisdiction and, where available, a Federal Court of the Commonwealth of Australia, and those that have jurisdiction to hear any appeals from them.
17.9 Entire Agreement
The terms of these Terms and Conditions constitute the entire understanding between You and Us in relation to Your hire of the Ordered Goods. Any prior representations, statements or promises made by Us are merged in and superseded by these Terms and Conditions and You expressly acknowledge that You have not relied on them.
In these Terms and Conditions:
Business Day means a day on which trading banks are open for ordinary business in the Jurisdiction.
Claim includes any actual or contingent claim, demand, regulatory proceeding, action, cause of action, liability, or anything of a similar nature, however described.
Consequential Loss means any consequential, indirect or incidental damages, including for example: any lost profits or lost savings; any business interruption; any wasted costs; and any Liability due to a third party.
Digital Signing Service means the Adobe SignTM platform or any other digital signing service and/or method agreed to be used by all parties.
Email Address for Service means:
- in relation to Us, email@example.com or any such other email address as We may from time to time notify You for this purpose; and
- in relation to You, means any email address which We reasonably believe to be accessed or used by You or Your solicitor at the material time.
Insolvency Event means
- in relation to a natural person, commission of an act of bankruptcy within the meaning of section 40 of the Bankruptcy Act 1966 (Cth); or
- in relation to a corporation, any of the following:
- if application is made, proceedings commenced or a meeting of shareholders, creditors or directors held with a view to: winding up or entering administration; obtaining cancellation of registration; or appointment of an inspector or other officer to investigate any of the corporation’s affairs pursuant to any legislation;
- if a receiver, liquidator (including provisional liquidator), administrator or other controller is appointed to the corporation;
- if a compromise or arrangement of the kind referred to in part 5.1 of the Corporations Act is proposed in relation to, or entered into by, the corporation;
- if the corporation is, or may be deemed within the meaning of any applicable law to be, insolvent or unable to pay its debts; or
- if the corporation has stopped payment of its debts or ceased or threatened to cease to carry on any of its business;
- if circumstances exist which would enable a court upon application to order the winding up of the corporation pursuant to section 461 of the Corporations Act;
- if any of the events described in preceding subparagraphs (b)(i) to (vi) of this definition, occurs in relation to any of the corporation’s shareholders; or
- if any of the corporation’s officers commits an act of bankruptcy within the meaning of section 40 of the Bankruptcy Act 1966 (Cth); or
- in relation to a trust:
- if the trustee or any primary, principal or specified beneficiary of the trust, being a natural person, commits an act of bankruptcy within the meaning of section 40 of the Bankruptcy Act 1966 (Cth); or
- if any of the events described in paragraph (b)(ii) of this definition occur in relation to any corporate trustee of the trust or any corporate primary, principal or specified beneficiary of the trust.
Jurisdiction means the Australian Capital Territory.
Legal Fees means legal fees, costs and disbursements on the higher of a full indemnity basis or a solicitor and own client basis, determined without taxation, assessment, or similar process.
Liability means any actual, prospective or contingent Claim, liability, loss, damage, expense or anything of a similar nature (including without limitation settlement costs and Legal Fees), excluding Consequential Loss.
Manufacturer’s Guidelines means the operating manual and/or instructions as to safe and appropriate use and/or maintenance of an Ordered Good, as published by the manufacturer of that item from time to time.
Order Confirmation Email is defined in clause 5.3.
Ordered Goods is defined in clause 9.1.
Site means the place where We will deliver and/or assemble Ordered Goods, as stipulated in Our quote.
Specified Rate means the rate which is 2% per annum above the rate from time to time applying to post-judgment debts within the jurisdiction of the Supreme Court of the Australian Capital Territory pursuant to Schedule 2, Part 2.2 of the Court Procedures Rules 2006 (ACT).
Successors means heirs, executors, administrators, liquidators (including provisional liquidators), receivers, successors, controllers, assigns and persons taking by way of novation.
Website means www.alfrescoaustralia.com.au
We, Us, Our etc means Alfresco Australia Pty Ltd ACN 608 083 567 and includes our directors, employees, subcontractors and other affiliates.
You, Your etc means the person or company who places the order with Us and, where You are a Company, all officers, shareholders and relatives of Your officers and shareholders.
Your Personnel includes:
- Your agents;
- Your employees, subcontractors and volunteers;
- any person for whose acts You may, in Our reasonably opinion, be vicariously liable under Australian law; and
- any person whom You may expressly or impliedly allow to operate the any Ordered Goods.
18.2 PPS Act
In these Terms and Conditions, the following words and phrases have the same meaning as in the PPS Act: commercial property; security interest; proceeds.
In the interpretation of these Terms and Conditions:
- the singular includes the plural and vice versa;
- words importing one gender include every gender;
- words and expressions importing natural persons:
- include bodies corporate, partnerships, trusts, associations, governments and governmental and local authorities and agencies, and vice versa; and
- shall, in the event of that person ceasing to exist or being reconstituted, renamed or replaced or its powers or functions being transferred to any other person, refer respectively to the person established or constituted in its place or succeeding to its powers or functions;
- a reference to a recital, clause, paragraph, schedule or annexure is a reference to a recital, clause, paragraph, schedule or annexure of or to these Terms and Conditions;
- any schedule, attachment or other document referred to in these Terms and Conditions (including in particular Our quote) forms part of these Terms and Conditions;
- a reference to any thing includes the whole or any part of that thing and a reference to a group of things or persons shall include each thing or person in that group;
- a reference to these Terms and Conditions or to any other deed, agreement or document includes, respectively, these Terms and Conditions or that other deed, agreement or document as amended, novated, supplemented, varied or replaced;
- a reference to any party includes that party’s Affiliates;
- a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
- a reference to any legislation or statutory instrument or regulation is to be construed in accordance with the Acts Interpretation Act 1901 (Cth) or the equivalent State or Territory legislation, as applicable;
- a reference to a body other than a party to these Terms and Conditions including, without limitation, an institute, association or authority, whether statutory or not which:
- ceases to exist; or
- whose powers or functions are transferred to another body;
is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
- no provision of these Terms and Conditions will be construed adversely to a party solely on the ground that the party was responsible for the preparation of these Terms and Conditions or that provision;
- where words or phrases are given a defined meaning, any other part of speech or other grammatical form of those words or phrases shall have a corresponding meaning;
- a reference to ‘currency’, ‘A$’, ‘$A’, ‘dollar’ or ‘$’ is a reference to Australian currency;
- headings and tables of contents are inserted for convenience only and have no effect on interpretation;
- any covenant or agreement by a party not to do an act or thing shall be deemed to include an obligation not to permit such act or thing to be done and to use its best endeavours to prevent such act or thing being done by another person;
- including and similar expressions are not and must not be treated as words of limitation;
- the term notice shall include notice, authorisation, request, nomination, notification and any other form of communication between the parties;
- the terms deliver, provide and handover includes procure the delivery or provision or handing over;
- the term obligations includes liabilities and legal, equitable, contractual, statutory and other duties and obligations;
- the term rights includes authority, benefit, power, privilege, remedy, right and cause of action; and
- the term taxes includes all present and future taxes, levies, imposts, deductions, charges, fees and withholdings, plus interest, related penalties, and any charges, fees or other amounts in respect of any of them.
19.2 References to and calculations of time
- A reference to:
- a time of day means that time of day in the Jurisdiction;
- a day means a period of time commencing and ending 24 hours later; and
- a month means a calendar month which is a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month.
- Where a period of time is specified, dates from a given day or the day of an act or event must be calculated exclusive of that day.
- Where something is done or received after 5:00pm on any day it will be deemed to have been done on the following day.
- A provision of these Terms and Conditions which has the effect of requiring anything to be done on or by a date which is not a Business Day must, unless the context otherwise requires, be interpreted to require that thing to be done on the Business Day immediately following.