Purpose This document sets out the terms under which goods or Deliverables are provided.
Party 1 Name - Provider (Scintex Pty Ltd trading as Sherpa 4x4)
Party 2 Name - Customer
Jurisdiction - Australia
Point of sale - 47 Eagleview Place, EAGLE FARM QLD 4009 AUSTRALIA
The Agreement will form an agreement between the parties when Customer directs Provider to provide Deliverables whether orally, in writing (including email) or otherwise.
Provider will supply Deliverables to Customer subject to the Agreement.
Provider will provide technical support to Customer via the Online Support Portal. Technical support may be subject to charges.
Customer will cooperate reasonably and in good faith with Provider. In order to fulfil this obligation, Customer agrees without limitation to:
A quote or indication of a price issued by Provider is an invitation to treat, not a contractual offer.
There may be technical or administrative errors in a quote or other informational materials provided by Provider, including but not limited to errors with respect to product description, pricing and availability. Where Customer makes an order or payment based on erroneous information, Provider may, with notice to Customer, cancel the order and refund any payment made in respect of it.
Any timeframe given by Provider in respect of the delivery of the Deliverables, including in the Scope, is indicative only, and not binding on Provider unless Provider specifies that it is binding in writing.
Due to the use of automated order processing and warehousing, orders must be changed, in writing by the Customer and accepted in writing by the Provider, prior to the order being processed for dispatch.
After Customer has directed Provider to provide Deliverables, and prior to the delivery of Deliverables, Customer may only direct Provider to change the Deliverables with Provider’s written agreement.
Customer acknowledges that a change in Deliverables at its direction may result in a change in fees and charges payable to Provider, and in the delivery timetable.
If Provider is unable to deliver the Deliverables because of an act or omission of Customer including a failure of Customer to fulfil its Customer obligations under the Agreement:
Risk in Deliverables will pass to Customer when delivered.
If for any reason Customer is unavailable to accept delivery of the Deliverables, or the Provider is unable to deliver the Deliverables because the Customer has not provided appropriate instructions, documents, licenses, equipment or authorisations:
Title in all Deliverables shall remain with Provider until Customer makes full payment to Provider of:
Customer must pay fees for Deliverables as set out in the Scope for those Deliverables plus any additional charges incurred for delivery. This includes drop tail or fork lift charges and redelivery charges.
Provider will invoice Customer for Deliverables and Customer will pay the amount due on the invoice within 76 days of the date of the invoice.
Customer is responsible for paying all government charges or duties of any kind incurred in or in connection with Provider’s provision of credit, or supply of Deliverables. Such charges include without limitation all stamp duties, GST, financial institution duties, and any other charges or duties of a like kind.
Payment will be deemed to have been made when Provider has received cleared funds in its bank account.
Customer acknowledges the Agreement is a Security Agreement for the purposes of the PPS Act and consents to Provider registering its Security Interest on the PPSR.
For the purposes of section 20(2) of the PPS Act, the Collateral includes goods provided to Customer by Provider as well as the property described in the following clauses regarding Security Interests.
In the event that Customer sells the Deliverables to a third party before it has made payment in full for them to Provider, Customer:
In order to further secure monies payable under the Agreement and any applicable Credit Application, Customer:
Customer:
For the purposes of this clause, Customer will be in default if:
If Customer fails to pay Provider any amount under the Agreement on the due date for payment, Provider may immediately do any or all of the following, without any liability, until all overdue fees are paid:
To the extent the law permits, Provider need not comply with any of the provisions of the PPS Act which the parties are permitted to contract out of under s115(1) and 115(7) of the PPS Act. The parties exclude the operation of s142 and 143 to the extent permitted by the law.
Customer waives its rights to receive all notices under the PPS Act that are permitted to be waived under s157(3) of the PPS Act.
Provider may amend the Agreement with notice to Customer. If Customer does not accept the amendment to the Agreement, Customer may terminate the Agreement immediately with notice to Provider.
Provider may terminate the Agreement immediately by written notice to Customer if:
Termination of the Agreement shall not affect Customer’s obligation to pay any outstanding Fees, Costs actually incurred in relation to Deliverables.
Except as expressly provided in the Agreement, Provider makes no warranties or guarantees that:
All limitations, exclusions and indemnities in the Agreement are subject to Non Excludable Conditions to the extent of any inconsistency, and apply to the fullest extent permissible by the law.
Provider [limits liability as much as the law allows] to Customer for the Deliverables, including liabilities caused by:
Customer indemnifies the Indemnified against all Costs suffered or incurred by the Indemnified, however caused, arising wholly or partially, directly or indirectly, in connection with the Agreement or Customer’s use of the Deliverables.
Without limiting the generality of the section entitled "General Indemnity" in the Agreement, Customer indemnifies the Indemnified against any Costs arising directly or indirectly from:
The parties agree that any breach or threatened breach by the Customer of the Customer’s confidentiality obligations, and obligations under this Agreement may cause the Provider immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Provider has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the Customer (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of the Customer’s obligations.
Initiation of Dispute
If there is a Dispute, then either party may notify the other with a Resolution Notice, which:
Meeting to resolve Dispute
Within 14 days after a Resolution Notice is given, a representative (with the authority to resolve the dispute) of Customer and Provider must meet and seek to resolve the Dispute.
Mediation
If the representatives of Customer and Provider do not resolve the Dispute within 30 days, the Dispute will be submitted for mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.
Mediation to final and binding arbitration
If the Dispute is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), it will be submitted to final and binding arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations.
Costs for mediation / arbitration process
When the Dispute is submitted to mediation or arbitration, each party will pay its own Costs for the proceedings. The parties will share equally the Costs payable to The Institute of Arbitrators & Mediators Australia.
Court proceedings not to be brought before process
Subject to this section, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
Parties can seek urgent injunctive relief
Nothing in the Agreement prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
Obligations and rights remain current during dispute
Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the Agreement and any other agreement between the parties.
Dispute resolution provisions subject to non-excludable conditions
The obligations set out in the Agreement in relation to dispute resolution are available to the fullest extent available under the law, and subject to the Non Excludable Conditions to the extent of any inconsistency.
The dispute resolution procedure set out in this clause will not apply in any instance where Provider seeks to enforce a debt in connection with the Agreement.
Provider does not assign Intellectual Property Rights
The provision of Deliverables shall not be taken to be an assignment by Provider of any Intellectual Property Rights in the Deliverables. Provider owns or is intended to own all right, title and interest in Intellectual Property Rights in the Deliverables.
Customer assigns Developed IPR
License of Intellectual Property Rights
Provider grants Customer a license to use Provider IPR and Developed IPR for the purposes of using the Deliverables in accordance with the Agreement.
Customer will not copy Provider IP
Customer warrants that it will not do any of the following, or permit any person over whom it has effective control to do so:
Where Provider incorporates Intellectual Property Rights belonging to a third party into the Deliverables, the developer warrants that it has the right to include that work as part of the Deliverables and hereby grants to Customer an irrevocable, non-exclusive, royalty free license to use those Intellectual Property Rights for the purpose for which it was provided.
To the extent that either party has Moral Rights in the Deliverables, each party, to the extent permitted by law:
Each party agrees and warrants that it will obtain any Moral Rights waivers and consents necessary to ensure the other party can provide or use the Deliverables in accordance with the Agreement without infringing Moral Rights of any party.
Customer authorises Provider to:
If the Agreement are inconsistent with any other document between the parties, the Agreement prevails to the extent of the inconsistency.
The relationship of the parties under the Agreement does not form a joint venture, partnership or agency, or create any form of employment relationship. The relationship of Provider and Customer under the Agreement is that of independent contractor and principal. No act or omission of either party is to bind the other party except as expressly set out in the Agreement.
The laws of Queensland govern the Agreement. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
The Agreement may only be amended by an agreement in writing duly executed by each party.
Customer cannot assign, novate or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of Provider. Provider may assign, novate or otherwise transfer any of its rights or obligations under any contract arising from the Agreement to a third party without notice to, or the prior consent of, Customer, but if Provider requires, Customer will sign any documents to give effect to an assignment, novation or transfer by Provider under this clause.
Time is of the essence for the performance of Customer’s obligations.
The parties agree to:
mean the legally binding agreement embodied in this document entitled "Terms of Business".
means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
means Intellectual Property Rights that Customer owned prior to the provision of the Deliverables.
means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.
means any written communication including each notice, consent, approval, request and demand) under or in connection with the Agreement.
means information that is by its nature confidential, including but not limited to information relating to the:
means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
means an application by Customer for Provider to issue them with credit.
means information the Customer provides to the Provider.
means goods and services that the Provider is in the business of providing.
means Intellectual Property Rights in the Deliverables that may arise by virtue of the provision, installation or development of the Deliverables including Customer’s contributions that provision, installation or development.
means any dispute arising between Customer and Provider in connection with the Agreement.
means:
means the amount payable in respect of Deliverables provided by Provider to Customer, including all costs, charges and expenses reasonably and properly incurred by Provider.
means Provider and its directors, employees, contractors and agents.
means in respect of a party (the Insolvent), the appointment of an administrator, a receiver or receiver and manager in respect of the Insolvent, an application to a court or an order for the winding up of the Insolvent, or where anything analogous or having a substantially similar effect to any of the preceding events occurs.
means all intellectual property and proprietary rights, whether registered or unregistered, including but not limited to know-how, trade secrets, patents, inventions, copyright, registered designs, trade marks, semi-conductor or circuit layouts, plant breeders rights and the right to have confidential information kept confidential; and any application or right to apply for registration of any such rights.
means moral rights under the Copyright Act 1968 (Cth), or any similar rights existing under foreign laws.
means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
means an order in writing for Deliverables in the form specified by the Provider.
means the Personal Property Securities Act 2009 (Cth).
means the Personal Property Securities Register.
means Provider’s Privacy Policy, which may be viewed at [URL] or any substitute URL.
means a notice of Dispute served by a party in relation to the Agreement.
means in relation to Deliverables, a statement of work, service level agreement or other written agreement between the parties as to the scope, standards or specifications of those Deliverables.
has the meaning given to that term in section 10 of the PPS Act.
means, in respect of Deliverables, the place agreed by the parties for the provision of the Deliverables, or the object in relation to which the Deliverables are delivered.
means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government agency, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code.
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
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