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 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 the goods or installation procedures of the SELLER are not provided with any warranty or guarantee that 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 writing 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 aboveground or underground obstructions or utility service, a fee to cover the SELLER’s time and costs may be charged.
4- 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.
5- Orders accepted by SELLER cannot be countermanded or delivery deferred or goods returned except with the written consent of SELLER which may in the SELLER’s absolute discretion may be refused or 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. The SELLER reserves the right to amend prices as it sees fit 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 the relevant 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. Title to the goods remain the property of the SELLER until paid for in full.
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 breaches 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 goods SELLER has supplied , 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 or any part of the goods.
17- 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 SELLER’s interest is a security interest within the meaning of the PPSA. BUYER acknowledges and agrees that in each case 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 BUYER to SELLER of the purchase price and any applicable credit charges and interest payable. To the extent permitted by law 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.
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 be subject to the laws of the Commonwealth of Australia, and the State of New South Wales.
23- The GUARANTOR guarantees to the SELLER prompt performance of all of the obligations of the BUYER under this agreement.
24- 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 without first commencing proceedings or enforcing any other right against the BUYER or any other person.
25- 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.
26- The indemnity in clause 25 is a principal obligation and is independent of the BUYER’s obligations to the SELLER.
27- The GUARANTOR must pay the SELLER the amount owing under the indemnity in clause 25 on demand by the SELLER.
28- 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.
29- 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;
30- 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.
31- 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.
32- 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.