Terms of service
In these Terms, when we say you or your, we mean both you and any entity you are authorised to represent (such as your employer). When we say we, us, or our, we mean Anteck Industries Pty Ltd (ACN 669 534 329). We and you are each a Party to these Terms, and together, the Parties.
1. Engagement and Term
1.1 These Terms apply from the Commencement Date until the date that is the earlier of (a) the date the Goods are provided (as reasonably determined by us); or (b) the date on which these Terms are terminated, (Term).
2. Goods
2.1 In consideration of your payment of the Price, we will provide the Goods in accordance with these Terms, whether ourselves or through our Personnel.
2.2 If these Terms express a time within which the Goods are to be supplied, we will use reasonable endeavours to provide the Goods by such time, but you agree that such time is an estimate only.
2.3 All variations to the Goods must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the scope of the Goods or our obligations under these Terms, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.
3. Delivery, Title and Risk
3.1 Title in the Goods will only pass to you on the date that you pay the Price in full in accordance with this Agreement.
3.2 We will use reasonable endeavours to deliver the Goods by the time agreed between the Parties, and risk in the Goods will pass to you once we have delivered the Goods to the agreed delivery location. You will be responsible for the costs of delivery as set out in the Quote.
3.3 Where Goods are supplied to you without payment in full, you:
(a) are a bailee of the Goods until title in them passes to you;
(b) irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the Goods, including the registration of any security interest in our favour with respect to the Goods; and
(c) must not allow any other person to have or acquire any security interest in the Goods without our prior written consent.
4. Price and Payment
4.1 In consideration for us providing the Goods, you agree to pay all amounts due under these Terms in accordance with the Payment Terms.
4.2 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under these Terms or at Law):
(a) after a period of 5 business days from the relevant due date, cease providing the Goods, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms.
4.3 When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Goods Tax) Act 1999 (Cth).
5.1 You acknowledge and agree that:
(a) this Agreement is a ‘security agreement’ under the Personal Property Securities Act 2009 (Cth) (PPSA);
(b) this clause 5 creates a security interest in the Goods and any proceeds from any sale or disposal of the Goods, and we are a secured party in relation to the Goods and any such proceeds;
(c) we are entitled to register our interest on the relevant register as (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’; and
(d) you must (at your cost), where we request, take all steps that we consider necessary or desirable to assist us to register our security interest, to ensure our security interest in the Goods and the proceeds is enforceable, and to perfect, or better secure our position under this Agreement, or ensure our priority over all other security interests
5.2 Until such time as title in the Goods has passed to you as contemplated under clause 3.1, you must not allow any other person to have or acquire any security interest in the Goods, unless with our prior written consent.
5.3 To the extent the Law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 95, 118, 121, 130, 132, 135 or 157. However, this does not prevent us from giving a notice under the PPSA.
5.4 You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.
5.5 Nothing in this clause 5 is intended as an agreement to subordinate a security interest arising under this Agreement and conditions in favour of any person under section 61 of the PPSA.
5.6 In this clause 5 a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.
5.7 Terms used in this clause 5 but not defined have the same meanings as in the PPSA.
5.8 This clause 5 will survive the termination or expiry of this Agreement.
6.1 Subject to clause 6.2, each Party must (and must ensure that its Personnel) keep confidential, and not use (except to perform its obligations under these Terms) or permit any unauthorised use of, information provided by the other Party, including information about these Terms and the other Party’s business and operations.
6.2 Clause 6.1 does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided that the disclosing Party ensures the adviser complies with the terms of clause 6.1.
6.3 This clause 6 will survive the termination of these Terms.
7.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Goods by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in these Terms excludes those Consumer Law Rights.
7.2 Subject to your Consumer Law Rights, we provide all material, work and goods (including the Goods) to you without conditions or warranties of any kind, implied or otherwise (including without limitation any implied warranties of merchantability or fitness for a particular purpose), whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
7.3 This clause 7 will survive the termination or expiry of these Terms.
8.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under these Terms 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
(c) (where our Goods are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to:
i. replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of supplying equivalent Goods; or
ii. the repair of the Goods, or the payment of the cost of having the Goods repaired;
(d) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Price paid by you to us in respect of the supply of the relevant Goods to which the Liability relates.
8.2 This clause 8 will survive the termination or expiry of these Terms.
9.1 These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 business days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.
9.2 Upon expiry or termination of these Terms:
(a) we will immediately cease providing the Goods;
(b) you are to pay for all Goods provided prior to termination, including Goods which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
(c) you agree to grant us such rights of access to any premises where the Goods are located to allow us (or our Personnel) to recover or repossess any Goods which we retain title to;
(d) by us pursuant to clause 9.1, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
(e) we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 6.
9.3 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
9.4 This clause 9 will survive the termination or expiry of these Terms.
10. General
10.1 Amendment: Subject to clause 2.3, these Terms may only be amended by written instrument executed by the Parties.
10.2 Assignment: Subject to clauses 10.3 and 10.10, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
10.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
10.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, these Terms (Dispute) without first meeting a representative of the other Party within 10 business days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.
10.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under these Terms for a period in excess of 60 days, then the other Party may by notice terminate these Terms, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.
10.6 Governing Law: These Terms are governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
10.7 Intellectual Property: Nothing in this Agreement constitutes a transfer or assignment of one Party’s Intellectual Property Rights to the other Party.
10.8 Notices: Any notice given under these Terms must be in writing addressed to the addresses set out in these Terms, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, 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.
10.9 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
10.10 Subcontracting: We may subcontract the provision of any part of the Goods without your prior written consent. We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.
11. Definitions
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Quote, and:
Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Commencement Date means the date that is the earlier of:
(a) the date that you accept the Quote; or
(b) the date that you make part or full payment of the Price.
Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price and any other amounts payable under these Terms will not constitute “Consequential Loss”.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Goods means the services set out in the Quote, as adjusted in accordance with these Terms.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, 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, whether or not registered or registrable.
Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the supply of the Goods.
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 or a Party to these Terms or otherwise.
Payment Terms means the timings for payment of the Price and any other amounts payable under these Terms, as set out in the Quote.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Price means the price set out in the Quote, as adjusted in accordance with these Terms.
Quote means the document to which these Terms are attached or incorporated.
Terms means these terms of service and any documents attached to, or referred to in, each of them.