Terms and Conditions
1. Definitions
1.1 “Astech” means Astech Group (Aust) Pty Ltd ATF Astech Group Unit Trust T/A Astech Group Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Astech Group (Aust) Pty Ltd ATF Astech Group Unit Trust T/A Astech Group Pty Ltd. 1.2 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, Customer information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.3 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.4 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular Customer and website and can be accessed either by the web server or the Customer’s computer. If the Customer does not wish to allow Cookies to operate in the background when using Astech’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.5 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Astech to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.6 “Equipment” means all Equipment including any accessories supplied on hire by Astech to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Astech to the Customer.
1.7 “Goods” means all Goods or Services supplied by Astech to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth). 1.9 “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Equipment hire as agreed between Astech and the Customer in accordance with clause 6 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods/Equipment.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties. 2.4 The Customer acknowledges and accepts that:
(a) that the supply of Goods/Equipment on credit shall not take effect until the Customer has completed a credit application with Astech and it has been approved with a credit limit established for the account;
(b) in the event that the supply of Goods/Equipment requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Astech reserves the right to refuse delivery;
(c) all descriptive specifications, illustrations, drawings, data, dimensions, and weights stated in Astech’s, or the manufacturer’s fact sheets, Price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as such in writing by Astech; and
(d) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Astech reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 5.2. In all such cases Astech will notify the Customer in advance of any such substitution, and also reserves the right to place the Customer’s order and/or Services on hold until such time as Astech and the Customer agree to such changes.
2.5 Any advice, recommendation, information, assistance, or service provided by Astech in relation to the Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on Astech’s own knowledge and experience and shall be accepted without liability on the part of Astech. Where such advice or recommendations are not acted upon then Astech shall require the Customer or their agent to authorise commencement of the Services in writing. Astech shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Authorised Representatives
3.1 Unless otherwise limited as per clause 3.2 the Customer agrees that should the Customer introduce any third party to Astech as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Goods and/or Services on the Customer’s behalf and/or to request any variation to the Goods and/or Services on the Customer’s behalf (such authority to continue until all requested Services have been completed or the Customer otherwise notifies Astech in writing that said person is no longer the Customer’s duly authorised representative).
3.2 In the event that the Customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise Astech in writing of the parameters of the limited authority granted to their representative.
3.3 The Customer specifically acknowledges and accepts that they will be solely liable to Astech for all additional costs incurred by Astech (including Astech’s profit margin) in providing any Goods and/or Services or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.1 (if any)).
4. Errors and Omissions
4.1 The Customer acknowledges and accepts that Astech shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Astech in the formation and/or administration of this Contract; and/or (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Astech in respect of the Services. 4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Astech; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid. 4.3 In circumstances where the Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) (“Customer Error“). The Customer must pay for all Goods it orders from Astech notwithstanding that such Goods suffer from a Customer Error and notwithstanding that the Customer has not taken or refuses to take Delivery of such Goods. Astech is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customer Errors.
5. Change in Control
5.1 The Customer shall give Astech not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Astech as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
6.1 At Astech’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Astech to the Customer; or
(b) Astech’s quoted Price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of fourteen (14) days.
6.2 Astech reserves the right to change the Price:
(a) if a variation to the Goods/Equipment which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any changes to applicable plans, specifications or any changes or corrections to any film, bromides, artwork and/or any printing surface supplied by the Customer and deemed necessary by Astech to ensure correctly finished work) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, incorrect measurements, plans and/or specifications provided by the Customer, as a result of delays from third party suppliers, etc.), which are only discovered on commencement of the Services; or
(d) where quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra Services or cost caused by any variation by the Customer of his original instructions or by the copy being, in Astech’s opinion, poorly prepared, or by the Customer’s requirements being different from those originally submitted or described; or
(e) for any tabulated work and/or foreign language included in the job but not contained in the copy originally submitted; or (f) in the event of increases to Astech in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond Astech’s control.
6.3 Variations will be charged for on the basis of Astech’s quotation, and will be detailed in writing, and shown as variations on Astech’s invoice. The Customer shall be required to respond to any variation submitted by Astech within ten (10) working days. Failure to do so will entitle Astech to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion. 6.4 At Astech’s sole discretion a non-refundable deposit may be required.
6.5 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by Astech, which may be:
(a) on or before delivery of the Goods/Equipment; or
(b) on completion of the Services; or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Astech. 6.6 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Astech.
6.7 Astech may in its discretion allocate any payment received from the Customer towards any invoice that Astech determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Astech may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Astech, payment will be deemed to be allocated in such manner as preserves the maximum value of Astech’s Purchase Money Security Interest (as defined in the PPSA) in the Goods/Equipment.
6.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Astech nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Customer must notify Astech in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as Astech investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in Astech placing the Customer’s account into default and subject to default interest in accordance with clause 16.1.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Astech an amount equal to any GST Astech must pay for any supply by Astech under this or any other agreement for the sale of the Goods/hire of the Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods/Equipment
7.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods/Equipment at Astech’s address; or (b) Astech (or Astech’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if the Customer is not present at the address.
7.2 At Astech’s sole discretion, the cost of Delivery is in addition to the Price.
7.3 Astech may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 Any time specified by Astech for Delivery of the Goods/Equipment is an estimate only and Astech will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods/Equipment to be delivered at the time and place as was arranged between both parties. In the event that Astech is unable to supply the Goods/Equipment as agreed solely due to any action or inaction of the Customer, then Astech shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Risk
8.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery. 8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Astech is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Astech is sufficient evidence of Astech’s rights to receive the insurance proceeds without the need for any person dealing with Astech to make further enquiries. 8.3 If the Customer requests Astech to leave Goods outside Astech’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
8.4 Astech shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, Astech accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.5 In the event the Customer gives information relating to measurements and quantities of Goods required in completing the Services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities before the Customer or Astech places an order based on these measurements and quantities. Astech accept no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.
8.6 The Customer acknowledges and accepts that:
(a) whilst Astech may have provided information or figures to the Customer regarding the performance of the Goods, the Customer acknowledges that Astech has given these in good faith and are estimates based on industry-based estimates used under optimal operating conditions; and
(b) Goods supplied may:
(i) fade or change colour over time;
(ii) expand, contract or distort as a result of exposure to heat, cold, weather;
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.
9. Samples and Proof Reading
9.1 Astech is under no obligation to provide samples of the Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by Astech to match virtual colours with physical colours, Astech will take no responsibility for any variation between virtual samples and the supplied Goods. Should a physical sample be required, this will be provided on request by the Customer and will be charged for as an extra in accordance with clause 6.2.
9.2 Whilst every care is taken by Astech to carry out the instructions of the Customer, it is the Customer’s responsibility to undertake a final proof reading of the Goods. Astech shall be under no liability whatever for any errors not corrected by the Customer in the final proof reading and should the Customer’s alterations require additional proofs this shall be invoiced as an extra in accordance with clause 6.2.
10. Compliance with Laws
10.1 The Customer and Astech shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
Modern Slavery
10.2 For the purposes of clauses 10.2 to 10.7:
(a) “Act” means the Modern Slavery Act 2018 (cth)
(b) “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act. 10.3 If the Customer is a Reporting Entity, it shall comply with all of its obligations under the Act.
10.4 Whether the Customer is a Reporting Entity or not, the Customer shall:
(a) use reasonable endeavours to identify, assess and address risks of Modern Slavery practices in its operations and supply chains; (b) use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;
(c) use its reasonable endeavours to ensure that if at any time the Customer becomes aware of Modern Slavery practices in its operations and supply chains, the Customer must as soon as reasonably practicable take all reasonable steps to address or remove these practices;
(d) provide to Astech a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and (e) within seven (7) days of Astech’s request (or such longer period as Astech agrees), provide to Astech any information or assistance reasonable requested by Astech;
(i) concerning the Customer’s compliance with the Act;
(ii) concerning the Customer’s operations and supply chains;
(iii) to enable Astech to prepare a Modern Slavery Statement or otherwise comply with the Act; or
(iv) to enable Astech to assess and address risks of Modern Slavery practices in its operations and supply chains. 10.5 The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and Astech will be able to terminate the Contract for any breach by the Customer.
10.6 The Customer warrants that any information supplied to Astech is true and accurate and may be relied upon for the purposes of the Act. 10.7 The Customer shall indemnify Astech against any loss or liability suffered by Astech as a result of the Customer’s breach of this clause 10.
11. Title to Goods
11.1 Astech and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Astech all amounts owing to Astech; and
(b) the Customer has met all of its other obligations to Astech.
11.2 Receipt by Astech of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
11.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 11.1: (a) the Customer is only a bailee of the Goods and must return the Goods to Astech on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Astech and must pay to Astech the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Astech and must pay or deliver the proceeds to Astech on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Astech and must sell, dispose of or return the resulting product to Astech as it so directs;
(e) the Customer irrevocably authorises Astech to enter any premises where Astech believes the Goods are kept and recover possession of the Goods;
(f) Astech may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Astech;
(h) Astech may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment and/or collateral (account) – being a monetary obligation of the Customer to Astech for Services – that have previously been supplied and that will be supplied in the future by Astech to the Customer.
12.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Astech may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, Astech for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of Astech; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of Astech;
(e) immediately advise Astech of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
12.4 Astech and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. 12.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by Astech, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by Astech under clauses 12.2 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12.10 Only to the extent that the hire of the Equipment exceeds a two (2) year hire period with the right of renewal shall clause 12 apply as a security agreement in the form of a PPS Lease in respect of Section 20 of the PPSA, in all other matters this clause 12 will apply generally for the purposes of the PPSA.
13. Security and Charge
13.1 In consideration of Astech agreeing to supply the Goods/Equipment, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering Astech’s security interest over the Customer on the PPSA, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies Astech from and against all Astech’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising Astech’s rights under this clause.
13.3 The Customer irrevocably appoints Astech and each director of Astech as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
14.1 The Customer must inspect the Goods/Equipment on Delivery and must within seven (7) days of Delivery notify Astech in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Astech to inspect the Goods/Equipment.
14.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non Excluded Guarantees).
14.3 Astech acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Astech makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. Astech’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, Astech’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If Astech is required to replace the Goods under this clause or the CCA, but is unable to do so, Astech may refund any money the Customer has paid for the Goods.
14.7 If the Customer is not a consumer within the meaning of the CCA, Astech’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Customer by Astech at Astech’s sole discretion; (b) limited to any warranty to which Astech is entitled, if Astech did not manufacture the Goods;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 14.1; and
(b) Astech has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, Astech shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods/Equipment;
(b) the Customer using the Goods/Equipment for any purpose other than that for which they were designed;
(c) the Customer continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by Astech;
(e) fair wear and tear, any accident, or act of God.
14.10 Astech may in its absolute discretion accept non-defective Goods for return in which case Astech may require the Customer to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
14.11 Notwithstanding anything contained in this clause if Astech is required by a law to accept a return then Astech will only accept a return on the conditions imposed by that law.
14.12 Subject to clause 14.1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.
15. Intellectual Property
15.1 Where Astech has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Astech. Under no circumstances may such designs, drawings and documents be used without the express written approval of Astech.
15.2 The Customer warrants that all designs, specifications or instructions given to Astech will not cause Astech to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Astech against any action taken by a third party against Astech in respect of any such infringement.
15.3 The Customer agrees that Astech may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Astech has created for the Customer.
16. Default and Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Astech’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes Astech any money, the Customer shall indemnify Astech from and against all costs and disbursements: (a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Customer would be liable;
in regard to legal costs on a solicitor and own Customer basis, internal administration fees, Astech’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees. 16.3 Further to any other rights or remedies Astech may have under this Contract, if a Customer has made payment to Astech, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Astech under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
16.4 Without prejudice to Astech’s other remedies at law Astech shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Astech shall, whether or not due for payment, become immediately payable if: (a) any money payable to Astech becomes overdue, or in Astech’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Astech;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
17. Cancellation
17.1 Without prejudice to any other remedies Astech may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Astech may suspend or terminate the supply of Goods/Equipment to the Customer. Astech will not be liable to the Customer for any loss or damage the Customer suffers because Astech has exercised its rights under this clause.
17.2 Astech may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Customer. On giving such notice Astech shall repay to the Customer any money paid by the Customer for the Goods/Equipment. Astech shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Customer cancels Delivery of the Goods/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Astech as a direct result of the cancellation (including, but not limited to, any loss of profits). 17.4 Cancellation of any Goods to be printed, special orders or made to the Customer’s specifications for non-stocklist/non-catalogue items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Privacy Policy
18.1 All emails, documents, images or other recorded information held or used by Astech is Personal Information, as defined and referred to in clause 18.3, and therefore considered Confidential Information. Astech acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Astech acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Astech that may result in serious harm to the Customer, Astech will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1, privacy limitations will extend to Astech in respect of Cookies where the Customer utilises Astech’s website to make enquiries. Astech agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email Customer type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Astech when Astech sends an email to the Customer, so Astech may collect and review that information (“collectively Personal Information”)
If the Customer consents to Astech’s use of Cookies on Astech’s website and later wishes to withdraw that consent, the Customer may manage and control Astech’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
18.3 The Customer agrees for Astech to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by Astech.
18.4 The Customer agrees that Astech may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years. 18.5 The Customer consents to Astech being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
18.6 The Customer agrees that personal credit information provided may be used and retained by Astech for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods/Equipment; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or (d) enabling the collection of amounts outstanding in relation to the Goods/Equipment.
18.7 Astech may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
18.8 The information given to the CRB may include:
(a) Personal Information as outlined in 18.3 above;
(b) name of the credit provider and that Astech is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults (provided Astech is a member of an approved OAIC External Disputes Resolution Scheme),overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and Astech has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Astech, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150). 18.9 The Customer shall have the right to request (by e-mail) from Astech:
(a) a copy of the Personal Information about the Customer retained by Astech and the right to request that Astech correct any incorrect Personal Information; and
(b) that Astech does not disclose any Personal Information about the Customer for the purpose of direct marketing. 18.10 Astech will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
18.11 The Customer can make a privacy complaint by contacting Astech via e-mail. Astech will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Equipment Hire
19.1 Equipment shall at all times remain the property of Astech and is returnable on demand by Astech. In the event that Equipment is not returned to Astech in the condition in which it was delivered Astech retains the right to charge the Customer the full cost of repairing the Equipment. In the event that Equipment is not returned at all Astech shall have right to charge the Customer the full cost of replacing the Equipment.
19.2 The Customer shall:
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment;
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Astech to the Customer.
19.3 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, Astech’s interest in the Equipment and agrees to indemnify Astech against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
19.4 Notwithstanding the above clause, immediately on request by Astech the Customer will pay:
(a) any lost hire charges Astech would have otherwise been entitled to for the Equipment, under this, or any other hire agreement; (b) any insurance excess payable in relation to a claim made by either the Customer or Astech in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Customer and irrespective of whether charged by the Customer’s insurers or Astech’s.
19.5 Return of the Equipment (“Return”) will be completed when the:
(a) Equipment is returned by the Customer to Astech’s place of business; or
(b) Astech takes back possession of the Equipment once collection by Astech is affected.
20. Service of Notices
20.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
21. Trusts
21.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Astech may have notice of the Trust, the Customer covenants with Astech as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund; (b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; (c) the Customer will not without consent in writing of Astech (Astech will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
22. Building and Construction Industry Security of Payments Act 1999
22.1 At Astech’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
22.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
23. General
23.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
23.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’s purchase order).
23.4 Subject to clause 14, Astech shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Astech of these terms and conditions (alternatively Astech’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
23.5 Astech may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent. 23.6 The Customer cannot licence or assign without the written approval of Astech.
23.7 Astech may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Astech’s sub contractors without the authority of Astech.
23.8 The Customer agrees that Astech may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Astech to provide Goods/Equipment to the Customer.
23.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to Astech.
23.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
23.11 This Contract and any subsequent hire agreement between Astech and the Customer, shall constitute as the entire agreement between Astech and the Customer, and the Customer hereby acknowledges that no reliance is placed on any representation made by Astech that is not embodied in this Contract.
23.12 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
