MODUPLAY GROUP PTY LTD CURRENT TERMS & CONDITIONS
The SELLER, means Moduplay Group Pty Ltd ABN 40 131 937 669 trading as 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 installed with intent that they are suitable for use by children, and while every endeavour is made to anticipate potential hazards, the BUYER accepts that the goods or installation procedures of the SELLER are not provided with any guarantee they are completely without hazard.
2- Where the BUYER requires installation without providing adequate space for fall zones, the SELLER may either at its option decline to install the equipment or will position the equipment as directed by Buyer in which event full responsibility for any consequences for such directions rests with the BUYER.
3- The SELLER accepts no responsibility for damage to drainage pipes or any other utility services. Where an installation is delayed or cancelled because of any above ground or underground obstructions or utility service, a fee to cover the SELLER’s time and costs may be charged.
4- Responsibility for goods passes to the BUYER on dispatch ex factory, or on completion of installation where applicable. After the time of delivery or completion the BUYER has sole responsibility for the goods.
5- Orders accepted by SELLER cannot be countermanded or delivery deferred or goods returned except with the written consent of SELLER which may be conditional.
6- The BUYER is responsible to notify relevant authorities and obtain any approvals or permits relating to the installation of equipment. SELLER accepts no liability for the cost of modifications made after equipment is installed where modifications are required by any relevant authority.
7- The SELLER reserves the right to make modification without notice to the design and specification of equipment. Delivered and installed equipment may vary in appearance and dimensions from those displayed in SELLER’s catalogues or sketches.
8- It is the responsibility of the BUYER to ensure that the equipment is properly maintained and in safe working order before allowing it to be used. The SELLER recommends constant adult supervision when the equipment is in use.
9- All conditions, terms and warranties that are or might otherwise be implied by law are excluded to the fullest extent permitted by law.
10- SELLER is not excused from legal liability (if any) for personal injury (which includes sickness and death), to the extent caused or contributed by SELLER’s negligence. However, where SELLER is liable for personal injury, the following limits apply. 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 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 BUYER or its contractors or agents or by any third party.
11- 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 SELLER’s liability under those provisions is limited as follows: SELLER’s liability is limited at 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.
12- Except as stated, and subject to the limits above, SELLER is not liable for, and BUYER does not rely on being able to claim against SELLER for, any loss or damage or Consequential Loss under or in connection with or arising out of any agreement for SELLER to supply equipment, goods, services 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.
13- Quoted prices will be held for 60 days. However the SELLER reserves the right to amend prices as necessary after this period. All prices for goods quoted are ex SELLER’s factory, unless otherwise stated and a transport charge will apply on delivery of both kit and installed units.
14- Prices include an amount equivalent to GST on that supply.
15- Payment for goods or services ordered by the BUYER shall be made in full on delivery of the goods or delivery of the services or, if credit terms are offered, by the thirtieth (30th) day after the date of the relevant invoice for the supply of goods or services. If in a particular case SELLER gives BUYER credit SELLER still reserves the right at any time and for any reason in SELLER’s sole discretion to refuse to supply any goods or services to BUYER on credit terms.
16- The following provisions apply to secure the payment, on the due date or dates for payment, of amounts that BUYER owes to SELLER and to secure BUYER’s further obligations. These provisions are essential conditions. If BUYER breach any of these provisions then at SELLER’s election all amounts that BUYER owes to SELLER become payable in full immediately. Until BUYER has paid the full price for all equipment and other goods SELLER has supplied (Goods), SELLER remains the owner of the Goods. Until BUYER becomes the owner of any Goods, SELLER may enter into any premises or vehicle if SELLER has reasonable grounds to expect that SELLER may find any part of the Goods there. If BUYER defaults in paying any part of the price in connection with an order then SELLER may re-take possession of all Goods.
17- From the commencement of the Personal Properties Securities Act 2009 (the PPSA), the following further provisions apply to the extent if any that SELLER’s interests are regulated security interests. BUYER acknowledges and agree that in each case SELLER has a purchase money security interest attaching to the particular Goods covered by an order to secure the payment by BUYER to SELLER of the purchase price and any applicable credit charges and interest payable. BUYER waives any rights it might have under section 157 of the PPSA.
18- If any variation in sizes and quantities, delivery instructions or any other matters on which a quotation is based SELLER reserves the right to revise and amend the contract price accordingly.
19- Should default be made by the BUYER in paying any sum due to SELLER as and when it becomes due the BUYER shall, on demand by SELLER, pay to 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. In that case, without limiting SELLER’s other rights SELLER may suspend the supply of any goods and defer or cancel any outstanding orders.
20- This condition applies if something happens which is beyond SELLER’s reasonable control that makes it impossible, more difficult or more expensive for SELLER to perform SELLER’s obligations in the usual way. In those cases SELLER may wait until it is again possible for SELLER to perform its obligations in its usual way without additional difficulty or expense, and SELLER is not liable for any delay which results.
21- 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.
22- These Terms of Trade, whether formally agreed to by the BUYER or not, apply to all sales made by the SELLER, and shall override any other contract agreed to between BUYER and SELLER and where any Terms of Trade of SELLER may vary from conditions of contract of BUYER, then the SELLER’S terms of trade will prevail, and shall be governed by and subject to the laws of the Commonwealth of Australia, and the State of New South Wales.