THESE TERMS AND CONDITIONS apply to the supply of goods and/or services by KW Services (WA) Pty Ltd (ACN 26 655 406 992) of 22 Alex Wood Dr, Forrestdale, Perth Western Australia 6112, trading as KW Services (we, us, our) to you (the individual, business, partnership or company entering into an Agreement with us, including the person/s, entities or any person acting on behalf of and with the authority of you requesting us to provide the Services as specified in any proposal, quotation, order, invoice or other documentation and includes your successors and assigns (you, your)).
The Terms and Conditions are between us and you.
1. OPERATION AND APPLICATION
1.1 We agree to provide you with the Services subject to these Terms and Conditions. These Terms and Conditions apply in respect of all Agreements, offers to sell, Quotes, Bookings, and other commercial transactions for the supply of the Services by us to you.
1.2 The Agreement between you and us shall be upon these Terms and Conditions and shall be read in conjunction with these Terms and Conditions.
1.3 These Terms and Conditions shall operate to the exclusion of any terms and conditions to the contrary effect expressed in any of our quotations or other communication or documentation and shall supersede all prior Agreements.
1.4 We may amend these Terms and Conditions from time to time by providing you with written notice of the amended terms. Any amended Terms and Conditions will apply to Services supplied after the effective date stated in the notice. If you do not agree to the amended Terms and Conditions, you may terminate the Agreement by written notice to us before the amended Terms and Conditions take effect, provided all amounts owing for Services already supplied are paid in full.
1.5 Please read these terms and conditions carefully and contact us if you have any questions.
2. FORMATION OF AGREEMENT
2.1 Any act by you, or those legally acting on behalf of you which requests us to begin performing the Services or providing any materials, including without limitation approving a quote, issuing a purchase order, or allowing work to commence, will be deemed as acceptance to these terms and conditions (Acceptance).
2.2 Unless stated otherwise on a Quote, our written Quotes are valid for 30 days from the date of issue of the Quote and thereafter are subject to confirmation in writing by us before acceptance.
2.3 The Quote is based on the information provided to us by you at the time of the Quote and should any unexpected issues arise or, for whatever reason, you require us to undertake additional work then such additional work will be charged accordingly.
2.4 Quotes provided by us for 10 Year Major Inspections are estimates only due to unknown internal condition of the Equipment.
2.5 Should you cancel Services after Acceptance, you agree that you may be held liable for any reasonable costs we or our Personnel have incurred in relation to the provision of the Services up to the point of cancellation including but not limited to cost of services, parts, expenses and labour.
3. SERVICES
3.1 We agree to provide you the Services for the Price in accordance with the Agreement and all relevant laws, and you accept the Services on that basis.
3.2 We shall provide the Services to you either at the KW Services Site, or by way of Mobile Services.
3.3 In providing the Services, we will endeavour to exercise the degree of skill, care and diligence which would reasonably and ordinarily be expected from a skilled, competent and experienced professional providing services that are the same or similar to the Services. We will carry out the Services in accordance with relevant standards, safety guidelines, environmental regulation and industry best practices where applicable.
3.4 All materials and parts used shall be appropriate for the specific application and applied in accordance with the manufacturers' specifications. All Goods and parts included in the Services are covered only by the manufacturer’s warranty and any guarantee expressed or implied by mandatory provisions of law, and excludes wear and tear, misuse and/or failure of unrelated components.
3.5 Nothing in this Agreement requires us to provide the Services where this would place us in breach of any law or any contract to which it is a party.
3.6 We may, at our discretion, deliver the Services by instalments in any sequence in consultation with you.
3.7 If we have been requested by you to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to you irrespective of whether or not the repair goes ahead, the fault is repaired, parts are available or the issue can be fully identified onsite.
3.8 You acknowledge and agree that we shall be entitled to retain any components replaced during the provision of the Services.
3.9 We may provide Services to you through the use of any of our Related Bodies Corporate and/or invoice you via any of our Related Bodies Corporate. You acknowledge that any debt you owe under this Agreement is a debt owed to us and that we may take any necessary action in relation to any such debt notwithstanding that the right or obligation giving rise to that debt has been satisfied by a Related Body Corporate of us or that the invoice for that debt has been provided to you by a Related Body Corporate of us.
3.10 We may, upon your written request and on such conditions as we reasonably require, provide Services to your Related Bodies Corporate. If we agree to provide Services to such Related Bodies Corporate, you and your Related Bodies Corporate are jointly and severally liable to us for performance of the obligations (including payment obligations) in relation to those Services under this Agreement.
3.11 10 Year Major Inspections
(a) A 10 Year Major Inspection involves substantial disassembly, testing and assessment of the Equipment in accordance with applicable Australian Standards and manufacturer requirements. Due to the nature of the inspection process, hidden defects, fatigue, corrosion, wear, non-compliance, damage or previously undiscovered issues may only become apparent during disassembly or testing.
(b) Any estimate, Quote, timeframe or indicative Price provided before commencement of the inspection is based on the visible and known condition of the Equipment at that time only and may be subject to change.
(c) You acknowledge and agree that additional repairs, parts, labour, testing, compliance work and/or Services may be required in order for the Equipment to meet applicable safety, certification, operational or manufacturer requirements.
(d) Where additional work is identified during the inspection process, we will use reasonable endeavours to notify you as soon as reasonably practicable of:
a. the additional work required;
b. the estimated additional costs; and
c. any anticipated delay to completion.
(e) You authorise us to carry out any additional work reasonably necessary to:
a. make the Equipment safe;
b. prevent further damage;
c. comply with applicable laws, standards or manufacturer requirements; or
d. complete the inspection process properly,
and you agree to pay the reasonable additional costs associated with that work.
(f) We may refuse certification, return-to-service approval or completion of the inspection where:
a. required repairs or compliance work are declined by you;
b. the Equipment does not meet applicable standards, does not meet manufacturer requirements and/or does not pass inspection criteria; or
c. continued operation of the Equipment would, in our reasonable opinion, be unsafe or non-compliant.
(g) We are not responsible for:
a. pre-existing defects;
b. historical fatigue, corrosion or wear;
c. previous repairs or modifications; and/or
d. latent defects not reasonably discoverable during the inspection process.
(h) You acknowledge that final costs and completion timeframes for 10 Year Major Inspections cannot be guaranteed prior to completion of the inspection process.
(i) You are responsible for ensuring equipment remains compliant with: (i) Australian Standards and (ii) Manufacturer requirement.
(j) Due to the nature of 10 Year Major Inspections, additional defects and required repairs are commonly identified during disassembly. You acknowledge and accept that the final Price may exceed the initial estimate.
3.12 Mobile Services
You acknowledge that:
(a) Equipment serviced or repaired during Mobile Services of at a location other than the KW Services Site may have hidden faults or pre-existing damage;
(b) Equipment condition may limit the ability to complete repairs onsite; and
(c) further repairs and/or service may be required at the KW Services Site.
4. COMPLETION, DELAYS AND EXTENSIONS OF TIME
4.1 We shall complete the Services as soon as reasonably practicable but in any event we shall not be obliged to complete the Services by any particular date unless expressly agreed to in writing by us.
4.2 You acknowledge and agree that any dates for delivery or for completion notified by us are estimates only. You must accept the actual completion date and we will have no liability to you for any damages, loss, costs, expenses or charges incurred by you due to late delivery or milestone date ensuing from any circumstances whatsoever, either within or beyond our control.
4.3 Should the provision of the Services or the progress of the provision of the Services be delayed by any of the following causes or conditions resulting therefrom:
(a) us not having uninhibited access to carry out the provision of Services pursuant to clauses 7.1(c) and 7.1(i);
(b) on account of variations;
(c) parts availability;
(d) extent of damage discovered during 10 Year Major Inspections;
(e) by inclement weather or conditions resulting from inclement weather;
(f) by reason of any civil commotion, or combination of workmen or strikes or lockouts affecting the provision of Services;
(g) any act, default or omission on your part; and/or
(h) by any other matter, cause or thing whatsoever beyond our control including, but not limited to, unavailability of labour or materials, industrial action or pandemic,
then in any such case, we shall be entitled to a fair and reasonable extension of time in which to complete the provision of Services without notice to you.
4.4 When you become aware of any matters that are likely to result in a delay to the provision of the Services, you must notify us in writing of the nature and estimated extent of the delay.
4.5 Upon receipt of your notice in clause 4.4 above, we will notify you of the estimated impact of the delay on the:
(a) time for completion of the provision of the Services; and
(b) estimated extra costs associated with the delay.
4.6 You shall pay for our extra costs and fees necessarily incurred by reason of any delay or extension.
4.7 You will ensure that if the Service is to be performed on your property, that at all times the property is safe and that all facilities provided by you for the purposes of enabling the Services to be performed are also safe.
4.8 We will ensure in performing the Services we use safe and proper procedures and practices and that we are properly trained and supervised and observe all proper safety practices.
4.9 Where we have advised you that our Personnel have been committed to the provision of the Services at specific times (for example, by providing you with a project plan which includes the scheduling of that Personnel), then you will provide at least 5 Business Days prior written notice, or as otherwise agreed by the Parties, if we are required to postpone or cancel our Personnel you shall pay for our extra costs and fees necessarily incurred by reason of any postponement or cancellation.
5. PRICE AND PAYMENT
5.1 You shall pay to us the price specified for the Services as stated on the Invoice and under these Terms and Conditions, or as agreed in writing between the Parties, and all other reasonable expenses or disbursements properly incurred by us in the provision of the Services, taxes, credit card fees, delivery fees, handling fees, and other charges in respect of the Services, as amended pursuant to clause 5.12 below (“Price”). All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated). The Price includes labour, parts, consumables and equipment use.
5.2 The Price for Mobile Services shall include, but not be limited to, reasonable call-out fees, travel charges, labour charges, vehicle and consumables costs.
5.3 We may apply additional charges to the Price for (i) after-hours work; (ii) attending remote locations; (iii) site-access delays (iv) waiting time during Mobile Services; (iv) emergency breakdown Mobile Services; (v) parking costs.
5.4 We will render invoices to you for the Price and you agree to pay the Price on or before the Date for Payment.
5.5 Unless stated otherwise by us, we will invoice you at the end of the Services, or at a time as specified in the Quote.
5.6 Payment may be requested in advance for Services being performed following which a receipted tax invoice from us will be issued for the Services, unless otherwise expressly stated in the accompanying Quote.
5.7 You warrant that your nominated payment method has sufficient clear funds available to pay the Price.
5.8 Time of payment is of the essence of the Agreement.
5.9 Where you have provided details of a debit or credit card for payment to us, you agree and authorise us to charge or make deductions from the debit or credit card to satisfy the Price or any part of the Price at any time without notice to you.
5.10 Should you default in the payment of any monies due under any Agreement, then all monies due to us shall immediately become due and payable and shall be paid by you within 7 days of the date of demand.
5.11 You shall pay on an indemnity basis all expenses, costs and disbursements, including debt collection agency fees, commission and any fees paid to our solicitors (on an indemnity basis) incurred by us or our appointed agents in recovering payment of any outstanding monies, enforcing our rights under the Agreement, or in investigating or defending any action or threatened actions.
5.12 You must pay all amounts owing by you under this Agreement by EFT, direct debit, cash or Stripe payment and without encumbrance, set-off, withholding, counterclaim or deduction to us.
5.13 We may review the Price annually and may increase the Price to reflect increases in labour, materials, supplier charges, fuel, freight, operating costs or other costs associated with providing the Services (the “Increased Price”). We will provide you with at least 30 days’ written notice of any price increase. If you do not agree to the revised Price, you may terminate the Agreement by written notice to us before the revised Price takes effect, provided all amounts owing for Services already supplied are paid in full.
5.14 Unless otherwise agreed between the Parties, any deposit set out in the Quote must be paid before we commence the provision of the Services.
5.15 If any amounts are unpaid 7 days after the payment date, we may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum (calculated daily and compounding monthly) or we may suspend the provision of the Services until we receive payment. We may immediately suspend Services where invoices are overdue.
6. VARIATIONS AND ADDITIONAL CHARGES
6.1 At any time during the Agreement, we may by notice to you, vary the Services to be provided to you as a consequence of:
(a) a change in the nature, quality, timing or sequence of portions of the Services at the direction of you;
(b) an increase in the costs to provide the Services which are beyond our control;
(c) increases to us in the cost of labour or Goods, or fluctuations in currency exchange rates, which are beyond our control;
(d) additional work is required to perform the Services; and/or
(e) additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection) which are only discovered upon commencement of the Services,
(a Variation).
6.2 All Variations will be detailed in writing to you confirming:
(a) the precise scope of the Variation; and
(b) any addition or reduction to the current scope as a result of the Variation.
6.3 We will use reasonable endeavours to obtain your approval before proceeding with any Variation. However, where additional work is reasonably required due to hidden defects, safety issues, compliance requirements, latent conditions, parts availability issues or matters discovered during inspection, disassembly, testing or repair, you authorise us to carry out such additional work as is reasonably necessary to complete the Services safely and properly, and you agree to pay the reasonable additional costs associated with that work. We will notify you of the Variation and the estimated additional costs as soon as reasonably practicable.
6.4 You agree that we may revise and amend the Price if there are any such Variations. If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with clause 6.2.
7. YOUR REPRESENTATIONS, OBLIGATIONS AND WARRANTIES
7.1 You represent, warrant, acknowledge and agree that:
(a) you have relied solely on your own due diligence, inspection, advice, search enquiries, perusal and opinion in relation to the suitability of the Services, and you have not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by us or anyone on its behalf in respect of the Services, other than those that are expressly contained in the Agreement;
(b) there are no legal restrictions preventing you from engaging us, or agreeing to this Agreement and you are entitled to have the Services carried out at the Location;
(c) you will cooperate with us provide us with all reasonable support and co-operation reasonably requested by us; and provide us with all documentation, service history, licenses, authorisations, consents, approvals and permits required by applicable law, information, instructions and access necessary, including any onsite inductions required (or reimburse us the cost of such inductions required), to enable us to provide the Services, as requested by us, from time to time, and in a timely manner;
(d) the information you provide to us is true, correct and complete and you have provided us with an accurate and sufficiently detailed description of the nature and scope of the Services to be performed;
(e) that you are duly incorporated under the jurisdiction of your incorporation, with all requisite corporate power and authority to own, lease and operate your assets and to carry on its business as currently owned, leased, operated and conducted;
(f) that you have full capacity, necessary rights and all necessary authorisations to enter into the Agreement and to perform your obligations according to the terms of this Agreement; and
(g) you will not infringe any third party rights in working with us and receiving the Services;
(h) except as otherwise provided in this Agreement, we will have full control over working time, methods and decision making in relation to provision of the Services in accordance with the Agreement. We will work autonomously and not at the direction of you, however, we will be responsive to your reasonable needs and concerns.
(i) should the Services require, such as during Mobile Services, you will at your own cost provide us and our Personnel with sufficient access, free from harm or risk to health or safety, to any relevant premises (including any facilities at the premises), adequate lighting and workspace, inductions and reasonable information aid and assistance to enable us to provide the Services, including at the dates and times that we may reasonably request;
(j) we may refuse or suspend work during Mobile Services where: (i) conditions are unsafe; (ii) the weather creates unacceptable risk; or (iii) access is restricted or unsuitable. Charges may still apply for attendance.
(k) you are responsible for obtaining, and providing to us if necessary, any access, consents, licences, approvals and permissions from other parties necessary for the Services to be provided, at your cost;
(l) the Equipment is not of a dangerous, damaging or unsafe nature, so as to be liable to cause damage or to be a risk to property, life or health;
(m) during Mobile Services, the Equipment is available;
(n) all books, manuals and records furnished by you or on your behalf relating to the Equipment are complete and accurate;
(o) no warranty applies to customer-supplied parts or goods and our labour relating to these parts is excluded from warranty; and
(p) where you are acting as agent in requesting the Services, you agree to be jointly and severally liable with your principal for all amounts payable to us arising out of the Services and payable pursuant to these terms and conditions.
7.2 By requesting us to carry out the Services, you authorise us to do all things necessary that are, in our opinion, necessary to carry out and complete the Services including, without limitation:
(a) operate the Equipment or any part or device on or about the Equipment; and
(b) remove from the Equipment any machinery, part or device.
7.3 You must collect the Equipment within 30) days after we have notified you that the Equipment is ready for dispatch and, in the event that you fail to do so then we shall, at our sole discretion, be entitled to charge you for storage costs at a rate of $50 - $150 per day that the Equipment is not collected for storage, depending on equipment size at our discretion for each day that the Equipment is not collected for storage.
8. LIEN
8.1 Where we have not received or been tendered the whole of any monies owing to us by you, we shall have, until all monies owing to us are paid:
(a) a lien on the Equipment; and
(b) the right to retain or sell the Equipment, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
8.2 Such lien shall continue despite the commencement of proceedings, or judgment for any monies owing to us having been obtained against you.
9. DEFECTS
9.1 If you believe that the provision of the Services are not in accordance with this Agreement (a Nonconformity), you must give notice in writing of the alleged defective issues to us within 7 days of delivery of the Services (the Evaluation Period).
9.2 If you provide such notice prior to the expiration of the relevant Evaluation Period, we shall, to the extent practicable at our own expense, promptly correct such Nonconformity, whereupon you shall receive an additional 7 day period (the Verification Period) commencing upon your receipt of the corrected Services to verify that the previously reported Nonconformity has been corrected. You shall provide us with such assistance as we may reasonably require enabling us to verify the existence of and correct a reported Nonconformity.
9.3 You agree that the Services shall be deemed accepted by you upon the expiration of the Evaluation Period or, if you have notified us of Nonconformity as provided above, upon expiration of the relevant Verification Period.
9.4 We shall not be responsible or liable for any alleged defect in the Services unless it is reported in accordance with this clause 9.
10. INDEPENDENT CONTRACTOR
10.1 In providing the Services under this Agreement it is expressly agreed that we are acting as an independent contractor and not as an employee. We acknowledge and you agree that this Agreement does not create a partnership or joint venture between us and you and is exclusively a contract for service. A party has no authority or power to bind, to contract in the name of, or to create a liability for the other party in any way or for any purpose.
11. INSURANCES
11.1 We will take out all insurance required to by law, including worker's compensation insurance as prescribed by law and liability insurance (including products and public liability cover) in respect of personal injury, death and property damage for not less than $20,000,000 per occurrence.
11.2 We will supply a copy of the insurance policies to you at your request.
12. YOUR STATUTORY RIGHTS:
12.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL.
12.2 You agree that our Liability for the Services is governed solely by the ACL, the Quote and these Terms and Conditions.
12.3 Subject to your Statutory Rights, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, Services (including the Services) are provided to you without warranties, representations and guarantees of any kind.
13. DELIVERY, TITLE AND RISK
13.1 If this Agreement states that:
(a) we are responsible for delivering the Goods and/or Equipment to you, we will use reasonable endeavours to deliver the Equipment your location by the delivery time, as notified by us to you; or
(b) you are responsible for collecting the Goods and/or Equipment from us, we will use reasonable endeavours to make available the Goods and/or Equipment, and you agree to collect the Goods and/or Equipment, at the collection location by the collection time, as notified by us to you. You agree to comply with any policies and procedures which apply at the relevant collection location.
13.2 Title in the Goods will remain with us until all amounts due and payable to us under this Agreement are paid in full.
13.3 Risk in the Goods will pass to you on delivery of the Goods to you or collection of the Goods by you (as applicable) and you must insure the Goods on or before such delivery.
13.4 You acknowledge and agree that we are not liable for any defects attributable to the manufacture of any Goods that are manufactured by third parties.
13.5 If you request us to leave the Goods and/or Equipment outside our premises for collection or to deliver the Goods and/or Equipment to an unattended location, then such Goods and/or Goods shall be left at your sole risk.
13.6 You acknowledge and accept that:
(d) we are only responsible for Goods that are replaced by us, and that in the event that other components subsequently fail, you agree to indemnify us against any loss or damage to the Goods and/or the Equipment, or caused by the components, or any part thereof howsoever arising;
(e) where immediate permanent repair of Equipment is not possible, temporary repairs may be performed to restore operation (Temporary Repairs). Where we have performed Temporary Repairs, we offer no guarantee that temporary repairs will permanently resolve the issue nor against the reoccurrence of the initial fault, or any further damage caused. We will immediately advise you of the fault and shall provide you with an estimate for the full repair of the Equipment; and
(f) we and our employees, agents or contractors are authorised to test drive or carry out tests of the Equipment at our discretion and may, if requested by you, collect or re-deliver the Equipment by whatever means and in whatever circumstances that we reasonably consider appropriate where nominated by you. We will not be liable to you for any damage which occurs to or is caused by the Equipment during such driving, testing, collection or delivery unless it arises from the reckless or wilful conduct of us, our employees, agents or contractors.
13.7 We will accept no responsibility for valuables or other items left in your Equipment. It is your responsibility to remove any valuables from your Equipment prior to us providing the Services.
13.8 While the Equipment is in our possession, we will take reasonable care of the Equipment. However, to the maximum extent permitted by law, all Equipment remains at your risk and you are responsible for maintaining appropriate insurance for the Equipment, including against loss, theft, fire, damage and other usual risks. We are not liable for any loss of or damage to the Equipment except to the extent directly caused by our negligent, reckless or unlawful act or omission.
14. TERM AND TERMINATION
14.1 This Agreement will commence on the Date of the Agreement and will remain in full force and effect until the completion of the Services, subject to earlier termination as provided in this Agreement. The Term may be extended with the written consent of the Parties.
14.2 Either Party may terminate this Agreement if the other Party breaches a material term of this Agreement and:
(a) the breach is incapable of remedy; or
(b) where the breach is capable of remedy, the breaching Party fails to remedy the breach within 30 days after receiving written notice from the other Party specifying the breach and requiring it to be remedied.
14.3 Either Party may terminate this Agreement upon the happening of any of the following events: (a) the giving of at least 30 days written notice by one Party to the other Party of the intention to terminate this Agreement without any reason; (b) if Either Party enters into a deed of arrangement or an order is made for it to be wound up; (c) if an administrator, receiver or receiver/manager or a liquidator is appointed to Either Party; (d) if Either Party is deemed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth); or (e) .if we are unable to provide the Services for a continuous period of more than 14 days due to circumstances beyond our reasonable control, including but not limited to staff shortages, illness, pandemic, industrial action, supply chain disruption, government restrictions, labour unavailability or other force majeure events.
14.4 On termination or expiry of this Agreement, you agree that:
(a) any amounts paid for Services rendered by us are non-refundable;
(b) you shall pay us all amounts due and payable to us under this Agreement (including for all Services provided by us and all goods or materials used or procured by us and properly chargeable) up to the date of termination, as a debt immediately due and payable;
(c) you shall pay us the reasonable out-of-pocket costs and expenses that we have incurred up to and including the date of termination and any other costs reasonably incurred by reason of the termination;
(d) you will take any other action reasonably required by us in relation to the termination;
(e) you agree to return or give us access to recover all property and subcontractor belonging to us on request (including any Intellectual Property or Confidential Information), and to give us or our Personnel such rights of access necessary to exercise our rights under this clause;
(f) you will immediately take all possible action to mitigate any liabilities incurred by you as a result of the termination.
14.5 The accrued rights, obligations and remedies of the Parties are not affected by termination of this Agreement.
15. LIABILITY, INDEMNITY AND EXCLUSIONS
15.1 Limitation of liability: Despite anything to the contrary, but subject to clauses 12, 15.1(a) and 21.2, to the maximum extent permitted by law:
(a) neither Party excludes or limits any liability that cannot lawfully be excluded or limited;
(b) neither Party will be liable for any Consequential Loss;
(c) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(d) our aggregate liability arising out of or in connection with the Services, this Agreement or any claim, whether in contract, tort (including negligence), statute, equity or otherwise, is limited to the greater of:
a. the total fees paid by you to us under the Agreement for the Services giving rise to the claim; or
b. the amount recoverable by us under any applicable insurance policy in respect of that claim,
a. provided that this limitation does not apply to liability arising from our fraud, wilful misconduct, reckless conduct, or any liability that cannot lawfully be excluded or limited.
15.2 To the extent permitted by law we do not warrant that the Services will be:
(a) uninterrupted, not subject to delay or fault or error free; or
(b) deliver specific results or otherwise meet your requirements or be fit for a specific purpose.
15.3 We are not liable for losses arising from interruptions, delays, faults or errors in the Services that are outside our reasonable control.
15.4 Notwithstanding any other clause in this Agreement, neither party is liable to the other party for any loss or damage in contract, in tort (including, but not limited to, negligence), in equity or by operation of any common law or statute arising under and/or in connection with this Agreement or the Services or otherwise suffered by a party, or any other person which:
(a) does not arise naturally or in the usual course of things from that breach; or
(b) constitutes or arises from or in connection with an indirect, special or consequential loss or damage, including a loss of revenue, loss of opportunity, loss of profit, loss of anticipated profits or revenue, loss of contracts, loss of goodwill, loss arising from business interruption, or liability arising out of or in connection with greenhouse emissions, pollution or contamination, even if such loss arises naturally or in the usual course of things from that breach.
15.5 We have no liability to you, any of your End Users or to any other person, for:
(a) any act or omission of a third party that is not engaged, controlled or supervised by us, or that occurs outside the scope of Services supplied by us;
(b) faults or defects in Services which are caused by your own conduct or misuse or the conduct or misuse by your End Users;
(c) any loss of revenue or profits, loss of data, loss of bargain and damage to reputation or for any form of indirect or consequential loss, whether in respect of breach of contract, equity, intended conduct, tort or otherwise, arising out of, or in connection with, the provision of the Services or this Agreement;
(d) faults or defects in the Services that arise due to equipment or cabling owned or leased by you or an End User or otherwise in your control or your End User’s control; or
(e) faults or defects in the Services that arise due to your failure, or the failure of any third party (other than a contractor or agent engaged by us), to appropriately maintain any equipment or cabling relevant to the supply of the Services.
15.6 To the extent permitted by law, we expressly disclaim and exclude all warranties, guarantees or other terms, whether express or implied, that may otherwise apply in respect of our provision of the Services. To the extent any such warranties, guarantees or other terms cannot by law be disclaimed or excluded, we limit our liability to (at our election):
(a) supplying the Services again; or
(b) paying the cost of having the Services supplied again.
15.7 You indemnify us against loss, damage, cost or liability suffered by us to the extent caused by:
(a) any breach of this Agreement by you or your Personnel;
(b) any negligent, unlawful or wrongful act or omission by you, your Personnel or any third party engaged or authorised by you;
(c) any inaccuracy or omission in information, documentation, service history or instructions supplied by you;
(d) any unsafe site conditions, restricted access conditions or failure by you to comply with applicable workplace health and safety obligations;
(e) any defect, fault, failure or damage arising from customer-supplied parts, pre-existing conditions, undisclosed modifications, misuse, improper maintenance or normal wear and tear of the Equipment; and
(f) any third-party claim arising from or connected with the matters set out in this clause,
except to the extent caused or contributed to by our negligence, breach of this Agreement, fraud, reckless conduct or unlawful act or omission.
15.8 Risk shall pass to you upon delivery of the Services (and any goods) to you and title shall strictly only pass to you upon payment of the Price in full.
16. INTELLECTUAL PROPERTY
16.1 As between the Parties, all Intellectual Property Rights developed, adapted, modified or created by or on behalf of us or our Personnel in connection with this Agreement or the provision of the Services, will at all times vest, or remain vested, in us.
16.2 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of this Agreement, to use your and your Personnel’s Intellectual Property for the performance of our obligations under this Agreement.
16.3 You agree that we own all Intellectual Property Rights in all Intellectual Property owned, licensed or developed by or on behalf of us or our Personnel before the Date of the Agreement and developed by us or our Personnel independently of this Agreement and nothing in this Agreement constitutes a transfer or assignment of any of our Intellectual Property Rights unless expressly stated.
17. CONFIDENTIALITY
17.1 Subject to clause 17.2, you must (and must ensure that your Personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.
17.2 Clause 17 does not apply where the disclosure is required by law or the disclosure is to a professional adviser required to obtain advice in relation to matters arising in connection with this Agreement and provided that you ensure the adviser complies with the terms of clause 17.1.
18. PUBLICITY, PHOTOS AND VIDEOS
18.1 You authorise us to take photographs and video at the Location and irrevocably grant us a royalty-free license to use those photos and video for promotional purposes.
18.2 You agree that we may use information identifying you for promotional purposes, including your name, logo and website.
19. RESTRICTION ON ENGAGEMENT OF EMPLOYEES
19.1 During the provision of Services, neither Party may entice, solicit or endeavour to entice, solicit or engage any person who is an employee of the other party to act as its employee or as a consultant to or agent for the other party or otherwise knowingly offer employment, a consultancy or an agency or employ or engage as a consultant or agent or cause employment or a consultancy or an agency to be offered to any person who is or has been an employee of the other party, either whilst we are providing Services for you or for a period of 6 months after the Services have been completed.
19.2 The parties agree this clause is an essential term and shall survive the termination of this Agreement.
19.3 The parties agree that a breach of this clause releases the non-breaching party from the burdens but not the benefits of this Agreement.
20. PPSA
20.1 In this clause, PPSA means the Personal Property Securities Act. If a term used in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.
20.2 In relation to each security interest under the PPSA created by this Agreement:
(a) this clause 0 applies to that security interest;
(b) the security interest extends to any accessions to the relevant collateral and the proceeds, if any, of that collateral and/or collateral (including any account); and
(c) these terms and conditions are a security agreement under the PPSA in relation to that security interest.
20.3 In relation to each security interest created by these terms and conditions:
(a) the security interest attaches to the relevant collateral and/or goods from commencement of the Services and there is no agreement to defer attachment to a later time than as specified above;
(b) we may register any financing statement, financing change statement or other documents and do all other things which are necessary or desirable to perfect and maintain our security interest under these terms and conditions, to preserve its interest in the relevant collateral and to realise our security interest with the agreed priority;
20.4 You must not sell, transfer, lease, encumber, part with possession of or otherwise deal with any of your rights and interest in the relevant collateral or any part of it without the prior written consent of us.
20.5 You must notify us in writing within 3 Business Days after any change in your name, trading name or contact details (including your address).
20.6 You appoint us as your agent and authorised representative for the purpose of requesting information from other secured parties under section 275 of the PPSA.
21. GENERAL
21.1 Entire Agreement: The Quote together with these Terms and Conditions constitutes the entire understanding and agreement of the Parties about its subject matter and supersedes any prior written or other arrangement of the Parties. Any other terms and conditions that you purport to attach or incorporate into the Quote, or these Terms and Conditions will be of no force or effect.
21.2 Statutory Limitation of Liability: Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such condition or warranty, the condition or warranty will be deemed to be included in this Agreement. However, where the statute permits liability to be limited, our liability for any breach of such condition or warranty will be limited to one of the following:
(a) the supplying of the Services again; or
(b) the supplying of labour to rectify any defect in relation to the Services.
21.3 Set-Off: you shall have no right of set-off against any amount owing by you to us under the Agreement. We may set off or apply any amounts payable by us under the Agreement or any other agreement towards satisfaction of any amount payable to us under the Agreement or any other agreement. If you become insolvent, we may set off any amounts you owe us even if such amounts are not yet due and payable.
21.4 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the law society of the State to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
21.5 GST: If and when applicable, GST payable on the Price will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Price.
21.6 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email sent to be email address stated in the Quote, Booking or the Agreement, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
21.7 Electronic communication: both Parties agree that they may communicate with each other electronically, provided that neither Party is responsible to the other for any loss or damages suffered in connection with the use of email as a form of communication.
21.8 Severance: If any part of an Agreement is void, illegal or unenforceable for any reason, that part will be regarded as severed, and the remainder of the Agreement will remain effective. Where a clause provision is prohibited or unenforceable, the Parties must negotiate in good faith to replace the invalid provision clause by a provision clause which is in accordance with the Governing Law and which must be as close as possible to the Parties’ original intent and appropriate consequential amendments (if any) will be made to these terms and conditions.
21.9 Waiver: The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party must be in writing and will not be construed as a waiver of any subsequent breach of the same or other provisions.
21.10 Force Majeure: Neither Party shall be held liable for any breach of this Agreement where the breach arises from an act of God, war, natural disaster, terrorism or any other event beyond the reasonable control of either Party.
21.11 Sub-Contracting and Assignment:
(a) We may assign, sub-contract or sub-let the whole or any part of the Services or our obligations under an Agreement, without seeking your consent. We may engage subcontractors, agents or third-party service providers to perform all or part of the Services on our behalf without obtaining your prior consent. We remain responsible for the performance of the Services carried out by our subcontractors. You must not directly engage, instruct or interfere with any subcontractor engaged by us in connection with the Services without our prior written consent.
(b) You may not assign, sub-contract or sub-let any part of the Services, or any of its rights, liabilities, or obligations under any Agreement, without the prior written consent of us.
21.12 Further acts: each Party must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to that Party) required by law or reasonably requested by the other Party to give effect to this Agreement.
21.13 Consent: a consent required under this Agreement from a Party may not be unreasonably withheld unless this Agreement expressly provides otherwise.
21.14 No Representation or Reliance: each Party acknowledges that neither the other Party (nor any person acting on a Party’s behalf) has made any representation or other inducement to it to enter into this Agreement except for representations or inducements expressly set out in this Agreement. Each Party acknowledges and confirms that it does not enter into this Agreement in reliance on any representation or other inducement by or on behalf of the other Party, except for representations or inducements expressly set out in this Agreement.
21.15 No exclusivity: The Parties acknowledge that this Agreement is non-exclusive and that either Party will be free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services.
21.16 Counterparts: This Agreement may be executed in any number of counterparts and all of those counterparts taken together constitute the same instrument.
21.17 Survival: Any obligations in Agreement which by their nature are continuing, or which are not fully discharged on the termination (for any reason) or expiry of the Agreement, continue to apply following the termination or expiry of the Agreement.
21.18 Governing law: This Agreement is governed by the laws of Western Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts (Governing Law).
21.19 Variation: except as otherwise provided in this Agreement, the provisions of this Agreement will not be varied, except by agreement in writing signed by the Parties.
22. INTERPRETATION & DEFINITIONS
22.1 In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, within these terms and conditions, and:
Agreement means the terms and conditions contained herein, together with together with any quotation, estimate, order, invoice, booking or other document or amendments expressed to be supplemental to this Agreement.
Booking means us sending our Personnel to you on your request as a call out to carry out the Services at the location designated by you.
Business Day means a day other than a weekend or public holiday at the place where the Services are to be provided.
Confidential Information includes information which:
(b) is prepared or produced under or in connection with this Agreement at any time;
Consequential Loss includes any consequential, special or indirect loss, damage, cost or expense including any real or anticipated loss of revenue; loss of profit; loss of savings; loss of use; loss of revenue; loss of income, goodwill or opportunity; loss of occupation or business; loss of benefit; loss of financial opportunity; loss of contract; penalties or fines; any loss of any software, data, computer or facilities or equipment; any losses or liabilities under or in relation to any other contract or to any third party, or economic loss however caused, whether arising out of a breach of this Agreement, at law, under any statute, in equity, or in tort (including negligence).
Date for Payment means the date for payment of the Price specified in our Invoice and, if no date for payment is specified in our Invoice, the date for payment shall be:
unless otherwise agreed in writing between the Parties.
Date of the Agreement means the date that the Agreement is formed between you and us, including the date on which you accept a Quote issued by us.
End User means the operator of your services and/or Equipment.
Equipment means any equipment of any nature whatsoever in relation to which we are to carry out the Services.
Goods means the goods we provide to you as part of the Services, including any volume of such goods, including but not limited to any parts, paints, oils or consumables used during the provision of the Services.
Invoice means an invoice issued to you by us.
Intellectual Property means any copyright, registered or unregistered design, patent or trade mark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
KW Services Site means Unit 4, 22 Alex Wood Dr, Perth Western Australia 6112.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise.
Location means the location at which the Services are to be carried out, including at the KW Services Site or at the location nominated by you for the provision of the Services.
Major Inspection means a 10-year inspection in accordance with applicable Australian Standards and manufacturer requirements.
Mobile Service means any Service performed offsite, including at your premises, worksites, roadside locations or field environments.
Party means each party to an Agreement, including us and you, and Parties has a corresponding meaning.
Personnel means, in respect of a Party, any of its related entities, employees, consultants, suppliers, principals, subcontractors or agents.
Price has the meaning stated in clause 5.1, and includes the Increased Price pursuant to clause 5.13.
Quote means a quote issued to you by us, including as a part of a Booking.
Services means the provision of Goods and/or services by us to you pursuant to an Agreement including but not limited to inspections, servicing, repairs, maintenance, field service work, 10 Year Major Inspections, breakdown services, field servicing and diagnostics, compliance work and Mobile Services at the Location.
Term means from the Date of the Agreement until the date that the Agreement is terminated.
Terms and Conditions means the terms and conditions set out herein subject to any amendments expressly made by us pursuant to clause 1.4.
22.2 Interpretation
If you are a partnership, it shall bind each partner jointly and severally; and
If you are a part of a Trust, you shall be bound in their capacity as a trustee; and
“You” includes your executors, administrators, successors and permitted assigns.