TERMS AND CONDITIONS OF PROVISION OF SERVICES – (Part 1)
1) GENERAL
a) Our Standard Terms are in two parts. Part 1 and Part 2 are detailed below. A hard copy of Part 1 and/or Part 2 can be provided on request.
b) When you engage our services you agree to be bound by Part 1 and Part 2 of our Standard Terms.
2) SERVICES
a) All Services to be supplied by ACME Test and Tagging Pty Ltd (ACME) are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by ACME to the Customer.
b) Any variation from the plan of scheduled works or specifications must be authorised or accepted in writing by ACME.
c) ACME will conduct the Services in accordance with Australian Standard AS/NZS 3760 & 3012 and will ensure that all Services provided will be carried out by competent persons as defined under the Australian Standard AS/NZS 3760 & 3012 or where other personnel are used, they will be under the supervision of an Authorised Technician.
d) ACME will, within 7 days of receipt of full payment for the Services by the Customer, provide the Customer with a report detailing which Appliances were tested and the outcome(s) of any tests conducted as a part of the Services unless otherwise agreed.
e) Provision of the Services will be made at the Customer’s nominated address, unless otherwise agreed.
f) The Customer will provide ACME with ready access to the areas, which shall include a 240V power supply and protection from weather, where the Appliances are located and advise ACME of any risks or hazards associated with the Appliances and also generally in connection the Customer’s premises or where those Appliances are located.
g) The Services are provided on an “as-is” basis and no warranty or guarantee over and above an inspection and test result is provided on the Appliances by ACME.
h) ACME, and, Authorised Technicians undertaking the Services on behalf of ACME, have professional discretion to veto any test result where they deem it appropriate and/or necessary in the best interest of maintaining a safe workplace or complying with the general intent of any applicable standard.
i) Any time or volumes quoted for provision of the Services is an estimate only. ACME will not be liable to the Customer for any delay, failure or inability to provide any of the Services. The Customer is not relieved of any obligation to accept or pay for the Services due to any delay.
j) ACME will not under any circumstances be liable for any damage, loss, cost or expense incurred or suffered by the Customer as a result of any failure to provide or for any delay in provision of the Services irrespective of the cause or reason for such failure or delay.
3) CANCELLATION
a) ACME (in its sole discretion for whatever reason) may cancel provision of the Services at any time before providing the Services by giving written notice of such cancellation to the Customer. ACME will not be liable to the Customer for any loss or damage arising from such cancellation.
b) ACME requires a minimum of 2 working days notice for any cancellation of booking to provide services to the Customer. Where less than the required notice is provided, ACME reserves the right to invoice the minimum charge.
4) PRICE
a) The Prices for the Services are as stated by ACME in its invoices, quotation, work authorisation or any other work commencement forms, or its current price list and may be altered from time to time without notice to the Customer.
b) All prices quoted by ACME will unless stated otherwise be exclusive of any Goods and Services Tax (GST).
c) Variations will be charged on the basis of ACME’s quoted cost for such variations and will be separately itemised on ACME’s invoice.
d) ACME has a discretion to apply an hourly rate of $85-00, charged in quarterly instalments, where the rate of providing the Services is slowed due to access, to attend safety briefings or inductions, or due to other factors outside of the Authorised Technician’s control.
e) ACME reserves the right to apply the minimum charge and/or travel time on a return trip basis.
5) PAYMENT TERMS
a) Payment of any amount invoiced by ACME to the Customer is to be made upon provision of the Services or as otherwise specified in ACME’s invoice or quotation.
b) Payment must be made by cash, cheque, bank cheque or direct credit to a bank account nominated by ACME or another method agreed by ACME in writing.
c) Payment for any variations must be made in full at the time of completion of any additional Services.
d) ACME may in its absolute discretion vary its payment terms in writing or allow credit terms for certain approved customers.
e) The Customer agrees to pay to ACME any charges incurred by ACME in relation to any payment made by the Customer by credit card or Telegraphic Transfer Fee.
f) The Customer acknowledges that ACME may in its absolute discretion apply any payment received against any outstanding amount payable by the Customer.
g) If the Customer has not paid any amount due to ACME in full by the due date, ACME may at its option terminate the contract without prejudice to any claims for damages it may have against the Customer.
h) The Customer agrees that ACME’s records are conclusive evidence of the Customer’s Order for the provision of the Services and the charges payable to ACME.
i) The Customer is liable for all reasonable expenses (including contingent expenses such as collection commission) and legal costs incurred by ACME for enforcement of obligations of the Customer under these terms.
TERMS AND CONDITIONS OF PROVISION OF SERVICES – (Part 2)
1) DEFINITIONS
In Part 1 and Part 2 of the Terms and Conditions the following words have the meaning described below:
ACME means ACME Test and Tagging Pty Ltd ACN 668 578 336 of 65 Moorhen Cre, Carrum Downs, VIC 3201.
Appliance means any appliance that the Services are performed on.
Authorised Technician means a person authorised by ACME to undertake the Services for and on behalf of ACME.
Customer means a person who purchases the Services from ACME or contracts with ACME for the supply of the Services.
GST means the tax imposed or to be imposed by the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
Order means any order placed by a Customer with respect to the supply by ACME of the Services pursuant to any agreement.
Services means any services (including testing and tagging of Appliances) provided to the Customer by ACME pursuant to any agreement.
Standard Terms means these terms and conditions which are in two parts.
2) GENERAL
a) Our Standard Terms are in two parts. Part 1 and Part 2 are detailed below. A hard copy of Part 1 and/or Part 2 can be provided on request.
b) When you engage our services, you agree to be bound by Part 1 and Part 2 of these Terms and Conditions.
c) These Standard Terms will apply to any supply of Services to the Customer by ACME, unless ACME expressly agrees in writing to any changes or any other special conditions.
d) ACME may in its absolute discretion amend these Standard Terms from time to time by notice to the Customer.
e) If there is any conflict or ambiguity in or between any these Standard Terms and any special conditions, then the Standard Terms shall apply to the extent of the inconsistency.
f) The Customer shall inform ACME of any facts or matters which might reasonably affect any decision by ACME as to whether to accept the request for the provision of Services.
3) PARKING
a) If free on-site parking is not available, ACME reserves the right to invoice the Customer for any parking fees on an at-cost basis.
4) INTEREST ON OVERDUE AMOUNTS
a) If any amount payable to ACME has not been paid by the Customer within 14 days of the due date for payment, ACME may:
b) charge interest on the amount outstanding (at the prevailing rate of penalty interest prescribed by the Penalty Interest Rate Act 1983 (Vic) or if this is greater than permitted by law then the highest rate permitted by law) from the due date for payment until such time as full payment of the outstanding amount is made by the Customer; and/or
c) invoice the Customer an administration fee equal to 5% of the amount outstanding that shall represent a reasonable estimate of ACME’s administrative expenses and labour that result from any such failure to make payment to ACME in accordance with these terms.
5) DESCRIPTION AND CONDITION
The Customer acknowledges that:
a) it is entirely responsible for the provision to ACME of:
(i) all relevant specifications in relation to the Appliances;
(ii) all relevant information and or specifications in relation to the Services to be provided by ACME;
b) ACME is not obligated to provide any Services to the Customer unless and until it receives from the Customer:
(i) the information referred to in clause 9(a); or
(ii) a written acknowledgment from the Customer that the information has not been provided and an authorisation that the Services are to be supplied at the full risk of the Customer after payment is received;
c) there has been no reliance by it on ACME’s skill or judgment or on any written or oral representations made by ACME, Authorised Technician’s, or any other employee, agent, dealer or other person or company, including any catalogues or publicity material, in deciding whether the Services meet particular criteria;
d) all photographs, weights, illustrations, dimensions, and any other particulars given in or accompanying a quotation or contained in descriptive literature are approximate only and deviations there from shall not violate the contract or be made the basis of any claim made against ACME;
e) clerical errors are subject to corrections including without limitation, computer or system errors which result in incorrect product codes, description or pricing printed on delivery documentation and invoices.
6) INSTALMENTS
ACME reserves the right to provide the Services by instalments and each instalment will be taken to be provided under a separate contract. A failure by ACME to deliver any instalment will not entitle the Customer to cancel the balance of the order.
7) WARRANTIES
The Customer warrants that it is solvent and able to pay its debts as and when they fall due.
8) IMPLIED TERMS
All conditions and warranties expressed or implied by statute, the common law equity, trade, custom or usage or otherwise are expressly excluded to the maximum extent permitted by law.
9) LIABILITY
The Customer agrees to release, hold harmless and indemnify ACME to the maximum extent permitted by law from and against any liability whatsoever and howsoever arising (including, without limitation, from negligence or wilful misconduct on the part of ACME or others) in connection with the provision of Services by ACME.
10) INDIRECT LOSS
To the extent that the law permits, ACME is not liable in any way for any indirect or consequential loss or loss of profit including, without limitation, any loss by reason of delay, non-delivery, defective or faulty materials or workmanship, negligence or any act or matter or thing done, permitted or omitted by ACME.
11) RECOVERY COSTS
In the event of a default by the Customer under these Standard Terms, the Customer shall indemnify and hold ACME harmless from all costs and expenses incurred by ACME and or its servants and agents in relation to the rectification of such default and or the enforcement of ACME’s rights under these Standard Terms.
12) CREDIT LIMIT
The grant by ACME of any credit facility or nomination of any credit limit shall not be binding on ACME which may at its sole discretion and at any time vary or cancel any credit facility provided to the Customer or alter the terms under which such credit facility is provided.
13) WAIVER
Failure by ACME to insist on strict performance of any terms, warranty or condition of the contract will not be taken as a waiver of it or of any rights ACME may have and no waiver will be taken as a waiver of any subsequent breach of any terms, warranty or condition.
14) ENTIRE AGREEMENT
These Standard Terms shall apply to any agreement between ACME and the Customer and no terms or conditions which the Customer may seek to impose shall apply unless agreed to in writing by ACME.
15) TERMINATION
ACME may terminate any Contract immediately by written notice to the Customer, in which case the Customer must pay for all Services provided up to the date of termination.
16) SEVERANCE
Notwithstanding that any provision of these terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the terms shall continue in full force and effect.
17) LEGAL CONSTRUCTION
These terms shall be governed and interpreted according to the laws of Victoria and ACME and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
18) FORCE MAJEURE
ACME shall not be, or be deemed to be, in default or breach of any agreement as a result of a matter beyond its reasonable control (“Force Majeure”) including but not limited to strikes and lockouts.
19) GST
a) Expressions used in this clause and in the GST Act have the same meanings as when used in the GST Act.
b) Amounts payable and consideration provided under or in respect of any agreement between ACME and the Customer are GST exclusive unless stated otherwise in writing.
c) A party is not obliged to pay the GST on a taxable supply to it until given a valid tax invoice for the supply.