Terms & Conditions

Moduplay Group Pty Ltd Current Terms & Conditions

These Terms and Conditions apply to Proposals issued after [date]. Except in relation to Proposals accepted by Moduplay clients after that date, these Terms and Conditions are otherwise subject to change at any time.

The SELLER means Moduplay Group Pty Ltd ABN 40 131 937 669 trading variously as CONCEPT PROFILE, PRECINCT STREET & PARK and MODUPLAY COMMERCIAL SYSTEMS and the BUYER, means the BUYER whose order for the purchase of goods or services is accepted by the SELLER.

1- All goods are supplied and/or services rendered (including but not limited to installation of goods) with intent that they are suitable for use by children, and while every endeavour is made to anticipate potential hazards, the BUYER accepts that, to the extent permitted by law, the goods and/or installation procedures of the SELLER are not provided with any warranty or guarantee that they are completely without hazard.

2- Any planning approvals (such as Council development consent) that may be required for the supply and installation of the goods are the sole responsibility of the BUYER.

3- The costing for the supply and installation of the goods has been created based on basic information provided to the SELLER by the BUYER. The SELLER’s written quote (“Proposal”) may be subject to change in accordance with these Terms & Conditions. 

4- Where the BUYER requires installation without providing adequate space for fall zones, the SELLER may either at its option decline to install the goods or will position the goods as directed by the BUYER in writing in which event full responsibility for any consequences for such directions rests with the BUYER.

5- The BUYER must advise the SELLER of any known services or utilities in the vicinity of the installation site. The SELLER accepts no responsibility for damage to any services or utilities. Whilst care is taken by the SELLER to locate underground services and utilities, some services and utilities cannot be located due to their material, age, installation method or for other reasons. The SELLER will not be liable for repair, relocation or termination of damaged services or utilities. THE SELLER will work with the BUYER to resolve such issues as they arise. Where an installation is delayed or cancelled because of any aboveground or underground obstructions, services or utilities, a fee to cover the SELLER’s time and costs may be charged. 

6- The SELLER’s pricing is based on:

1. Wind Region A & B (Australia);
2. Normal sub-soil conditions with cohesive soil;
3. 100kPa minimum ground bearing capacity; and
4. Maximum 1% fall on the site.

Failure to meet some or all of these criteria may incur extra charges.

7- The SELLER and its subcontractors use all reasonable endeavours to provide a quality, long lasting rubber surface. However, the longevity of joints between newly installed rubber and other materials with different chemical properties and thermal expansion rates, such as concrete, asphalt, timber, synthetic grass and even pre-existing rubber, cannot be guaranteed.

8- In the case of supply of goods only, all risk and responsibility for the goods passes to the BUYER on dispatch ex factory. In the case of supply and installation of goods all risk and responsibility for the goods passes to the BUYER on completion of installation. Nothing contained in this clause affects the passing of title in the goods to the BUYER.

9- The SELLER’s pricing is based on delivery of the goods within 7 days of the goods being ready for delivery, failing which storage fees are payable by the BUYER at the per pallet space per week rate set out in the SELLER’s Proposal or, if no rate is set out in the Proposal, at a rate imposed by the SELLER acting reasonably. Orders accepted by the SELLER cannot be countermanded or delivery deferred or goods returned except with the written consent of the SELLER which may in the SELLER’s absolute discretion be refused or be conditional. In the event that the SELLER gives such written consent, the SELLER reserves the right to charge cancellation fees, storage fees (at the rate referred to above) and/or restocking fees to the BUYER. In the event that installation of the goods is delayed by more than one calendar month after the goods are ready for delivery, the installation pricing is reviewable at the instance of the SELLER. The BUYER acknowledges that customisation of orders involves significant time, specialised resources, and upfront investment in materials and/or design. The SELLER reserves the right to reflect such expenses in cancellation and restocking fees. 

10- The BUYER is responsible to notify relevant authorities and obtain any approvals or permits relating to the installation of goods. SELLER accepts no liability for the cost of modifications made after goods are installed where modifications are required by any relevant authority.

11- The SELLER’s policy of continuous product improvement means that goods may alter in design or specification without notice to the BUYER. The SELLER reserves the right to make modifications to the design and specification of goods. Delivered and installed goods may vary in appearance and dimensions from those displayed in SELLER’s catalogues, sketches, website images and product visualisations/renderings. 

12- The BUYER acknowledges that colours shown in images (whether printed or electronic), videos, or other materials may vary slightly from the actual goods due to differences in screen settings, lighting conditions, and manufacturing processes. The SELLER will endeavour to represent colours as accurately as possible. However, the BUYER will have no claim against the SELLER on account of any such variations. 

13- Unless otherwise provided for in the Proposal, the SELLER’s pricing for delivery and/or installation is based on:

1. clear access to the site for the SELLER’s workers and vehicles;
2. any BUYER access requirements such as safety inductions, escorting or registering the SELLER’s workers not causing a delay in excess of 10 minutes in aggregate; and
3. simultaneous installation of all goods contained in a single order.

The Seller reserves the right to review pricing and/or carry out a staged installation if the assumption in subclause (a) is incorrect.

14- Where an order is to be delivered but without installation by the SELLER, the BUYER is responsible for unloading at the delivery point. If facilities for unloading are not available at that location, goods may be delivered to a freight depot nominated by the SELLER in the vicinity of the BUYER’S place of business for BUYER collection.

15- It is the responsibility of the BUYER to ensure that the goods are properly maintained and in safe working order before allowing it to be used. The SELLER recommends constant adult supervision when the goods are in use.

16- To the extent permitted by law, the conditions, terms and warranties that apply to goods that are supplied and/or services that are rendered (including but not limited to installation of goods) by the SELLER are limited to those expressly set out in these Terms & Conditions. All conditions, terms and warranties that are or might otherwise be implied by law are excluded to the extent permitted by law.

17- The SELLER is not excused from legal liability (if any) for personal injury (which includes sickness and death), to the extent caused or contributed by the SELLER’s negligence. However, where the SELLER is liable for personal injury, the following limits apply. The SELLER is not liable for (i) Consequential Loss being loss of use, lost income or profits, loss of or unavailability of or damage to tangible or intangible property, claims made against the BUYER by others, and any other special, indirect or consequential loss or damage or (ii) to the extent that something was caused or contributed to by fraud, illegal or unlawful act, breach of duty, negligence or default by the BUYER or its contractors or agents or by any third party.

18- Parts of the Australian Consumer Law in some cases either cannot be excluded, restricted or modified; or can only be restricted or modified to a limited extent. If any provisions of those types do apply, then to the extent permitted by law the SELLER’s liability under those provisions is limited as follows: The SELLER’s liability is limited at the SELLER’s option – in the case of goods, to replacement of the goods or the supply of equivalent goods; or repair of the goods; or payment of the cost of replacing the goods or of acquiring equivalent goods; or payment of the cost of having the goods repaired; and in the case of services, to supplying the services again or the payment of the cost of having the services supplied again.

19- Except as stated, and subject to the limits above, the SELLER is not liable for, and the BUYER does not rely on being able to claim against the SELLER for, any loss or damage or consequential loss under or in connection with or arising out of any agreement for the SELLER to supply goods and/or render services (including but not limited to installation of goods) or anything done or omitted in that regard or for that purpose, or in relation to any representation or conduct before, under or in respect of any order.

20- Prices quoted in the Proposal will apply for such period as may be stated in the Proposal. If no period is stated in the Proposal, prices will apply for 30 days from the date of the Proposal. The SELLER reserves the right to amend prices as it sees fit after the relevant period. All prices for goods quoted in the Proposal are ex the SELLER’s factory, unless otherwise stated and a transport charge will apply on delivery of both kit and installed goods.

21- Unless otherwise stated in writing, all prices are expressed exclusive of GST on the relevant supply, and GST is payable in addition at the statutory rate applying from time to time.

22- Payment for goods and/or services ordered by the BUYER shall be made in accordance with the terms of the Proposal If credit terms are offered then, subject to those credit terms, the SELLER still reserves the right at any time and for any reason in the SELLER’s absolute discretion to refuse to supply any goods or services to the BUYER on credit terms. All goods remain the sole property of the SELLER until paid for in full.

23- Following the SELLER’s completion of the supply of the goods, or the supply and installation of the goods (as the case may be) and the BUYER’s payment of the purchase price, the SELLER will supply to the BUYER a certificate to the effect of the attached Customer Assurance Warranty, noting however that the form and/or substance or the Customer Assurance Warranty may vary from time to time.

24- The following provisions apply to secure the payment, on the due date or dates for payment, of amounts that the BUYER owes to the SELLER and to secure the BUYER’s further obligations. These provisions are essential conditions. If the BUYER breaches any of these provisions then at the SELLER’s election all amounts that the BUYER owes to the SELLER become payable in full immediately. Until the BUYER has paid the full price for all goods the SELLER has supplied, the SELLER remains the owner of the goods. Until the BUYER becomes the owner of any goods, the SELLER may enter into any premises or vehicle if the SELLER has reasonable grounds to expect that the SELLER may find the goods or any part of them there, and re-take possession of all or any part of the goods.

25- Where goods are to be installed on land owned or occupied by the BUYER, the BUYER agrees that if the SELLER is entitled to recover possession of the goods, the BUYER grants to the SELLER an irrevocable licence to enter onto the land for that purpose. In the case of installation on land not owned or occupied by the BUYER, the BUYER must, prior to installation, obtain the written agreement of the owner or occupier to the SELLER having the right to enter the land to recover possession of the goods. Where goods are to be installed on land owned or occupied by the BUYER, and such installation results in the goods becoming part of the land as a matter of law, the BUYER charges the land with payment of the purchase price and consents to the SELLER lodging a Caveat over the title to the land to secure payment of the purchase price.

26- For the purposes of the Personal Properties Securities Act 2009 (Cth) (PPSA), the BUYER grants to the SELLER a security interest in the goods and the following further provisions apply to the extent that the SELLER’s interest is a security interest within the meaning of the PPSA. The BUYER acknowledges and agrees that in each case the SELLER has a purchase money security interest attaching to the particular goods covered by an order placed by the BUYER with the SELLER in order to secure the payment by the BUYER to the SELLER of the purchase price and any applicable credit charges and interest payable. To the extent permitted by law the BUYER –

(a) waives any rights it might have under section 157 of the PPSA;

(b) waives compliance with sections 95, 118, 121(4), 125, 130, 132 and 137(3) of the PPSA;

(c) agrees that sections 142 and 143 of the PPSA are excluded.

27- If the BUYER requires any variation in sizes and quantities, delivery instructions or any other matters on which a quotation is based (and whether or not that requirement arises out of a recommendation of the SELLER) the SELLER reserves the right to revise and amend the contract price accordingly.

28- Should default be made by the BUYER in paying any sum due to the SELLER as and when it becomes due the BUYER shall, on demand by the SELLER, pay to the SELLER interest at the rate equivalent to the rate quoted from time to time by the National Australia Bank as its indicator lending rate or any rate replacing that rate, plus 2%, calculated on a daily basis on any moneys due but unpaid, such interest to be computed from the due date for payment until payment in full. In that case, without limiting the SELLER’s other rights, the SELLER may suspend the supply of any goods and/or services and defer or cancel any outstanding orders.

29- This condition applies if circumstances beyond the SELLER’s reasonable control arise that make it impossible, more difficult or more expensive for the SELLER to perform the SELLER’s obligations in the manner completed by the SELLER’s agreement with the BUYER. In such a case the SELLER may delay performance of its obligations under the agreement until it is again possible for SELLER to perform its obligations without additional difficulty or expense, and the SELLER is not liable for any delay which results. If such circumstances persist for more than 90 days the SELLER reserves the right by notice in writing to the BUYER to terminate the agreement.

30- In any case where this agreement is subject to the Australian Consumer Law, the Seller will provide spare parts and repair facilities for goods supplied by the SELLER for a reasonable time after their purchase. In any other case the SELLER will make every reasonable effort to ensure the reasonable availability of spare parts for any particular product type for at least 1 year from the first time it is or was supplied to a customer when it was new.

31– These Terms & Conditions incorporate the SELLER’s Customer Assurance Warranty as if set out in full in these Terms & Conditions.

32- The GUARANTOR guarantees to the SELLER prompt performance of all of the obligations of the BUYER under this agreement.

33- The SELLER may, if the BUYER has not paid any money payable to the SELLER when due, immediately recover the money from the GUARANTOR as a liquidated debt in a court of competent jurisdiction without first commencing proceedings or enforcing any other right against the BUYER or any other person.

34- The GUARANTOR indemnifies the SELLER against any cost (including legal fees and disbursements on a full indemnity basis and any counsel or consultant’s fees and expenses at the rate charged to the SELLER), liability, loss, fine, penalty, suit, claim or damage that the SELLER may suffer because of:

(a) a failure by the BUYER to pay any money to the SELLER under this agreement; or

(b) any money payable by the BUYER to the SELLER under this agreement not otherwise being payable.

35- The indemnity in clause 34 is a principal obligation and is independent of the BUYER’s obligations to the SELLER.

36- The GUARANTOR must pay the SELLER the amount owing under the indemnity in clause 34 on demand by the SELLER failing which the SELLER may immediately recover the money from the GUARANTOR as a liquidated debt in a court of competent jurisdiction.

37- This guarantee and indemnity is a continuing security, and is not discharged or prejudicially affected by any settlement of accounts, but remains in full force until a final release is given by the SELLER.

38- The Guarantor’s liability under this guarantee and indemnity is not affected by:

(a) the granting of time, forbearance or other concession by the SELLER to the BUYER or the GUARANTOR;

(b) any delay or failure by the SELLER to take action against the BUYER or the GUARANTOR;

(c) an absolute or partial release of the BUYER or a compromise with the BUYER;

(d) termination of this agreement;

(e) the fact that the agreement, this guarantee and indemnity, or the grant of any security interest by the BUYER under this agreement is wholly or partially void, voidable or unenforceable;

39- The GUARANTOR’s liability is not discharged by a payment to the SELLER, which is later avoided by law. If that happens, the SELLER, the BUYER and the GUARANTOR will be restored to their respective rights and obligations as if the payment had not been made.

40- The GUARANTOR must pay or reimburse the SELLER on demand for:

(a) the SELLER’s costs, charges and expenses of making, enforcing or doing anything in connection with this guarantee and indemnity, including all costs actually payable by the SELLER to its legal representatives (whether under a costs agreement or otherwise); and

(b) all taxes (except income tax) which are payable in connection with this guarantee and indemnity or any payment, receipt or other transaction contemplated by it.

41- Money paid to the SELLER by the GUARANTOR must be applied first against payment of costs, charges and expenses and then against other obligations under this guarantee and indemnity.

42- The SELLER’s Proposal is submitted on the basis that Moduplay Terms and Conditions will be applied to the transaction whether formally agreed to by the BUYER or not. Any other terms that the BUYER might seek to impose are of no effect unless agreed to in writing by Moduplay.  If for any reason any contractual terms that the BUYER might assert do apply but are inconsistent with Moduplay’s Terms & Conditions, then the Terms & Conditions will prevail. In particular, the SELLER does not accept any retention money, security payment or liquidated damages clauses in contracts entered into unless agreed to in writing by the SELLER in its absolute discretion.

43- These Terms & Conditions and the agreement arising from them shall be governed by and be subject to the laws applying in the State of New South Wales and the parties submit to the non-exclusive jurisdiction of those courts exercising jurisdiction in that State.

 44- The Buyer acknowledges having reviewed and understood the Assumptions and Important Notes set out in the Proposal.

The following is to be updated into our proposal documents and is NOT included in our Terms and Conditions (they are already mentioned their)