1 DEFINITIONS

In this document:

1.1 “Agreement” means any contract or agreement, whether formal or informal, written, oral or partly written and partly oral, formed between the Client and EMB, including but not limited to by way of the Client’s acceptance of a Quote issued by EMB.

1.2 “Client” means the individual, business, partnership or company entering into an Agreement with EMB and includes the Client’s successors and assigns.

1.3 “EMB” means the Trustee for the Zenner Family Trust trading as Elite Monkey Bars (ABN 55 843 857 386).

1.4 “Goods” means the provision of goods by EMB to the Client including:

1.4.1 Children’s playground equipment and accessories, including but not limited to monkey bars and swing sets; and 1.4.2 Sporting equipment and accessories.

1.5 “Instructions” means any manual or document provided by EMB to the Client containing instructions in connection with the supply of Goods and/or Services by EMB, including in relation to the installation, use or maintenance of the Goods.

1.6 “Lay-By” means an agreement between the Parties, subject to clause 19, for the Client to:

1.7

1.7.1 pay the Price in two or more instalments during the Lay-By Period; and

1.7.2 receive the Goods following full payment of the Price.

1.8 “Lay-By Period” means three months or any longer period agreed to in writing by the Parties.

1.9 “Notice” means a notice in accordance with clause 18.

1.10 “Party” means each party to an Agreement, including EMB and the Client, and “Parties” has a corresponding meaning.

1.11 “Price” has the meaning stated in clause 5 and is subject to clause 15.

1.12 “Quote” means a quote issued to the Client by EMB.

1.13 “Service” means the provision of services by EMB to the Client including delivery and installation of the Goods.

1.14 “Site” means any site or property that is the subject of the Agreement, including any land or premises specified in EMB’s Quotation, order, or invoice as the address for delivery or installation of the Goods or provision of the Services.

1.15 “Terms and Conditions” means the terms and conditions set out herein subject to any amendments expressly made by EMB pursuant to clause 3.3.

1.16 “Works” means EMB’s provision of Goods and/or Services pursuant to the Agreement.

1.17 Unless context requires otherwise:

1.17.1 the singular includes the plural and vice versa;

1.17.2 a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

1.17.3 a reference to any gender includes all genders;

1.17.4 a reference to a recital, clause or schedule is to a recital, clause or schedule of or to these Terms and Conditions;

1.17.5 a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, restated or replaced from time to time;

1.17.6 a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;

1.17.7 a reference to a body, other than a Party to the Contract (including, without limitation, an institute, association or authority), whether statutory or not: a) which ceases to exist; or  b) whose powers or functions are transferred to another body,  is a reference to the body which replaces it, or which substantially succeeds to its powers or functions;

1.17.8 If a party comprises two or more persons, the covenants and Contracts on their part bind and shall be observed and performed by them jointly and each of them severally and may be enforced against any one or any two or more of them;

1.17.9 A reference to a Party includes its executors, administrators, successors and permitted assigns;

1.17.10 No provision of these Terms and Conditions will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of these Terms and Conditions or that provision;

1.17.11 Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

1.17.12 All references to A$, $, dollar, $, or to currency are references to Australian dollars;

1.17.13 “Including” and similar expressions are not and must not be treated as words of limitation; and

1.17.14 Headings are for ease of reference only and do not affect the meaning of these Terms and Conditions.

 

2 WORKS

2.1 EMB agrees to provide the Client with the Works subject to these Terms and Conditions. These Terms and Conditions apply in respect of all Agreements, offers to sell, quotations and other commercial transactions for the supply of Goods and/or Services by EMB to the Client.

2.2 The Client agrees that EMB will only provide the Works within Australia.

 

3 OPERATION AND APPLICATION

3.1 The Agreement between the Client and EMB shall be upon these Terms and Conditions and shall be read in conjunction with these Terms and Conditions.

3.2 These Terms and Conditions shall operate to the exclusion of any terms and conditions to the contrary effect expressed in any of EMB’s quotations or other communication or documentation and shall supersede all prior Agreements.

3.3 From time to time, EMB may review and amend these Terms and Conditions of the Agreement and the Client shall be bound by any variation which shall apply to the supply of any of the Works following the effective date of the variation.

 

4 QUOTATIONS

4.1 Unless stated otherwise on the Quote, EMB’s written Quotes are valid for 10 days from the date of issue of the Quote, and thereafter are subject to confirmation in writing by EMB before acceptance.

 

5 PRICE

5.1 The Client shall pay to EMB the Price specified on the Quote or invoice dispatched by EMB, plus all taxes, credit card fees, freight, handling, delivery and insurance charges by EMB in respect of the Goods and/or Services (“the Price”).

5.2 EMB may, at any time before the delivery of the Goods and/or Services, provide written notice to the Client to increase the Price to reflect any increase in the cost to EMB due to a factor beyond the control of EMB including (but without limiting in any way the generality thereof) water, flood, fire, storm tempest, rioting, earthquake, pandemic, civil commotion or industrial action, any change of delivery dates, quantities or specifications for the Goods and/or Services requested by the Client, any delay caused by the Client, or any variation to the Works or the Agreement pursuant to clause 15.

 

6 PAYMENT

6.1 The Client agrees to pay the Price for the Goods and/or Services in accordance with these Terms and Conditions and any Quote or invoice rendered by EMB for the Goods and/or Services, including making payment on or before the due date(s) as stated on EMB’s Quote or invoice.

6.2 The Client agrees to pay the Price in full prior to EMB carrying out the Works.

6.3 EMB will render invoices to the Client for the Price, and the Client agrees to pay the Price on or before the due date(s) as stated on EMB’s Quote or invoice.

6.4 Time of payment is of the essence of the Agreement.

6.5 Where the Client has provided details of a debit or credit card for payment to EMB in the Agreement, the Client agrees and authorises EMB to charge or make deductions from the debit or credit card to satisfy the Price or any part of the Price at any time without notice to the Client.

6.6 The Client warrants that it shall ensure that its nominated debit or credit card in the Agreement has sufficient clear funds available to pay the Price or any part of the Price when due to EMB under the Agreement.

6.7 EMB may charge an additional 1.2% to the Client where the Client has provided details of a debit or credit card for payment to EMB.

6.8 EMB shall be entitled to charge the Client interest calculated at 12% per annum, on the balance of all overdue accounts and invoices from the date of due payment until the date of actual payment.

6.9 If there is no due date notified by EMB to the Client or stated on EMB’s Quote or invoice the Client shall, in any event, pay EMB within 30 days of EMB rendering an invoice to the Client for the Works.

 

7 COSTS RECOVERABLE

7.1 Should the Client default in the payment of any monies due under any Agreement, then all monies due to EMB shall immediately become due and payable and shall be paid by the Client within 7 days of the date of demand.

7.2 The Client shall pay on an indemnity basis all expenses, costs and disbursements, including debt collection agency fees, commission and any fees paid to EMB’s solicitors (on an indemnity basis) incurred by EMB or its appointed agents in recovering payment of any outstanding monies, enforcing its rights under the Agreement, or in investigating or defending any action or threatened actions.

7.3 Where the Client is a company, the Client’s Directors personally guarantee the payment of all costs and expenses owing to EMB by the Client.

7.4 The Client hereby charges and mortgages in favour of EMB to secure the repayment of any debt and any monies which may become owed by the Client to EMB hereunder and under any Agreement all of the Client’s present and future estate and interest in all real property and personal property.

 

8 COMPLETION, DELAYS AND EXTENSIONS OF TIME

8.1 Any time or date named and accepted by EMB, including in the Quote or in clause 8.2, for completion, delivery, dispatch, or arrival of the Goods or Services is an estimate only and does not constitute a condition of the Agreement or part of the description of the Services and/or Goods and is not of the essence of the Agreement.

8.2 Unless otherwise specified in Quote, EMB estimates that the time for completion, delivery, dispatch, or arrival of the Goods or Services is 10-15 business days following payment of the Price in full by the Client.

8.3 Should the Works or the progress of the Works be delayed by any of the following causes or conditions resulting therefrom:

8.3.1 EMB not having uninhibited access to carry out the Works pursuant to clause 12.1; 8.3.2 On account of variations; 8.3.3 By inclement weather or conditions resulting from inclement weather; 8.3.4 By reason of any civil commotion, or combination of workmen or strikes or lockouts affecting the Works or affecting the manufacture or supply of materials for the Works; 8.3.5 Any act, default or omission on the part of the Client; 8.3.6 Delay on the part of any local or other authority in granting or issuing any necessary consent or approval; 8.3.7 By any other matter, cause or thing whatsoever beyond the control of EMB including but not limited to unavailability of labour or materials, technical or mechanical issues, or pandemic;

then in any such case, EMB shall be entitled to a fair and reasonable extension of time in which to complete the Works without notice to the Client.

8.4 When the Client becomes aware of any matters that are likely to result in a delay to the Works, the Client is to notify EMB in writing of the nature and estimated extent of the delay.

8.5 Upon receipt of the Client’s notice in clause 8.4 above, EMB will notify the Client of the estimated impact of the delay on:

8.5.1 The time for completion of the Works; and 8.5.2 The estimated extra costs associated with the delay.

8.6 The Client shall pay for EMB’s extra costs and fees necessarily incurred by reason of any delay or extension, including transportation and storage costs.

 

9 FORCE MAJEURE

9.1 EMB will not be liable for any breach of the Agreement due to any matter or thing beyond EMB’s control. Furthermore, EMB is excused from performing any term, covenant or condition required by the Agreement during the time and to the extent that performance is prevented when such performance is prevented wholly or in part by circumstances beyond EMB’s control.

 

10 DEFECTS

10.1 Upon delivery of the Goods the Client must inspect the Goods and, if the client believes the Goods are damaged or not in accordance with the Agreement, the Client must give notice in accordance with clause 10.2.

10.2 If the Client believes that the Works are not in accordance with the Agreement the Client must give written notice of the defect to EMB within 24 hours of delivery of the Works.

10.3 EMB shall not be responsible or liable for any alleged defect in the Works unless it is reported in accordance with clause 10.2.

 

11 NO WARRANTY

11.1 EMB makes no express warranties to the Client, except those expressly set out in the Agreement and these Terms and Conditions.

11.2 EMB will not be liable in any circumstances for any loss or damage whatsoever allegedly incurred and arising out of any:

11.2.1 Conditions, warranties and terms implied by statute or general law or custom except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void; 11.2.2 Alleged liability to the Client in contract for consequential or indirect damages arising out of or in connection with the provision of the Goods and/or Services, or the Agreement, even if EMB knew they were possible or they were otherwise unforeseeable, including, without limitation, lost profits and damages suffered as a result of claims by a third party; and

11.2.3 Claims by the Client in negligence for acts or omissions of EMB or its employees, agents, or contractors arising out of or in connection with the Agreement.

11.3 Whilst EMB will use its best endeavours to ensure delivery of the Goods and/or Services by the date requested by the Client, it does not guarantee delivery on that date and will not be liable for any damages, loss, costs or charges incurred by the Client due to late delivery ensuing from any circumstances whatsoever, either within or beyond the control of EMB.

11.4 The Parties acknowledge and agree that:

11.4.1 any prior representations, agreements and arrangements, including representations as to the suitability of the Goods and/or Services;

11.4.2 any descriptions, illustrations and material contained in any advertisement, website, catalogue, price list or brochure; and 11.4.3 all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods and/or Services for any purpose or as to design, assembly, installation, material or workmanship or otherwise, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void;

are expressly excluded from, and do not form part of, the Agreement unless specifically stated in the Agreement to the contrary.

 

12 THE CLIENT’S WARRANTIES

12.1 The Client warrants that EMB and EMB’s representatives, servants, agents, employees and contractors have full and uninhibited access to the Site to carry out the Works.

12.2 The Client warrants that:

12.2.1 The Client has title to or possession of the Site; and 12.2.2 The Client is entitled to have the Works carried out at the Site.

12.3 The Client warrants that it has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by EMB or anyone on its behalf in respect of the Goods and/or Services, other than those that are expressly contained in the Agreement.

12.4 The Client warrants that it will use the Goods and/or Services in accordance with the Instructions.

12.5 The Client releases and indemnifies EMB from any and all costs, and assumes all risks and liabilities for and in respect of injuries to or deaths of persons and any damage to property, arising from the Client’s failure to comply with the warranty in clause 12.4.

 

13 NO LIABILITY FOR THIRD PARTIES

13.1 The Client acknowledges and agrees that EMB is not liable for:

13.1.1 any damage or defects attributable to the provision of services by a third party, including a third party engaged by EMB; or 13.1.2 any defects attributable to the manufacture of any goods that are manufactured by third parties.

 

14 LIABILITY AND INDEMNITY

14.1 EMB shall not be liable to the Client or any other party in contract, tort, warranty, strict liability, or any other legal theory for any indirect, consequential, incidental, punitive or exemplary damages, or for any claim for loss of profits, and the Client agrees that EMB may plead these Terms and Conditions as a bar to any such claims whether they arise at law, in equity, under any statute, regulation, or other legislative instrument, or under any contract, deed, or any other instrument made or approved under any law.

14.2 EMB shall not be liable to the Client for any damage caused to the Site, the Client’s property or goods, or the property of any third party, that may occur during the provision of the Goods and/or Services by EMB.

14.3 The Client hereby releases and indemnifies and agrees to keep EMB indemnified from any and all costs (including all legal fees and costs) and any other legal or other expenses incurred by it in investigating or defending any action or threatened actions (on an indemnity basis), damages, liabilities, penalties, fines, expenses or losses including indirect, incidental, consequential, punitive or exemplary loss or damage (including but not limited to loss of profit), whether resulting from breach of contract, tort, warranty, strict liability, statute or any other legal theory or otherwise that EMB may incur in relation to the Client or any third party, including where the cost, damage, liability, penalty, fine, expense or loss is caused by or contributed to by EMB in any way or for any reason whatsoever.

14.4 The Client assumes all risks and liabilities for and in respect of the Services and/or the Goods and for all injuries to or deaths of persons and any damage to property howsoever arising from the Client’s use of the Services and/or the Goods.

 

15 VARIATIONS

15.1 Any variation to the Works or the Agreement must be agreed to in writing between a representative of EMB and of the Client, confirming:

15.1.1 the precise scope of the variation; and 15.1.2 the amount or means of calculating the amount that the Client is to pay EMB for the variation; and 15.1.3 any change to the Price as a result of the variation.

15.2 The Client agrees that EMB may revise and amend the Price of the Works if there are any such variations.

 

16 CANCELLATION AND REFUNDS

16.1 Any request by the Client to cancel the Agreement or return Goods must be made to EMB in writing (“Cancellation Request”). EMB may, in its sole discretion, accept or reject the Cancellation Request and specify any terms and reasonable charges upon which such Cancellation Request may be agreed to.

16.2 If EMB agree to the Cancellation Request pursuant to clause 16.1 the Client shall pay EMB for all Services provided by EMB, all work done by EMB, and all goods or materials used or procured by EMB and properly chargeable to the date of cancellation, including but not limited to administration fees and freight charges.

 

17 BREACH AND TERMINATION

17.1 If the Client defaults in the due and punctual observe of all or any of its obligations, warranties or covenants under the Agreement or these Terms and Conditions, dies, commits an act of bankruptcy, takes or shall have taken against it any action for its winding up, is placed under official management, administration or receivership, then EMB may without prejudice to any other right or remedies it has:

17.1.1 treat as discharged all or any obligation arising from any Agreement; 17.1.2 retain any security given or monies paid by the Client and apply this in reduction of any sum of money owed or owing by the Client to EMB; and 17.1.3 take such steps as EMB may deem necessary in its sole discretion to mitigate its damages suffered including the putting to use, sale or disposal of any goods under the Agreement.

17.2 In addition to any other rights under the Agreement, EMB may terminate the Agreement by notice in writing to the Client immediately upon any one of the following events:

17.2.1 Any deliberate and substantial prevention of or interference with the provision of the Goods and/or Services or progress thereof caused by the Client whether directly or indirectly;

17.2.2 Substantial damage to or interference with the Works or access thereto by any cause beyond the control of EMB including (but without limiting in any way the generality thereof) water, flood, fire, storm tempest, rioting, earthquake, pandemic, civil commotion or industrial action; 17.2.3 Any substantial breach of the Agreement or these Terms and Conditions by the Client; 17.2.4 If the Client shall make any assignment for the benefit of or enter into any arrangement or composition with its creditors or go into liquidation (whether voluntary or compulsory except for the purpose of reconstruction or amalgamation) or have a receiver appointed or commit an act of bankruptcy or if a sequestration order is made against the Client’s estate; 17.2.5 Any failure by the Client to pay any part of the Price in accordance with clause 6 herein.

17.3 If the Agreement is terminated, the Client shall pay EMB for all Services provided by EMB, all work done by EMB, and all goods or materials used or procured by EMB and properly chargeable to the date of termination.

 

18 NOTICES

18.1 A party must give any notice required under these Terms and Conditions or the Agreement in accordance with this clause 18.

18.2 A notice must be served at the address or electronic mail address of the party set out in the Agreement.

18.3 A party may deliver a notice by hand, post, or by electronic mail.

18.4 If before 4.00pm local time in the place of delivery, a party delivers a notice by hand or by electronic mail and the sending party completes the transmission the notice will be taken to be given on the day of delivery or transmission, and in any other case on the next day. If the party gives notice by post the notice will be taken as given on the 7th day in the place of delivery after the notice is posted.

18.5 A party may give notice of another address (within Australia) or an electronic mail address for service to the other party, and the new address or the electronic mail address shall be the address for service of the party for the purposes of this clause.

 

19 LAY-BY

19.1 This clause 19 applies where the Parties have agreed for the Client to purchase Goods on Lay-By.

19.2 The Client agrees to pay the Price during the Lay-By Period as follows:

19.2.1 25% of the Price upon acceptance of EMB’s Quote (“Lay-By Deposit”); and 19.2.2 The remainder of the Price in two or more instalments agreed to by the Client and EMB.

19.3 If the Client fails to pay the Price in accordance with clause 19.2 EMB may terminate the Agreement and retain the Lay-By Deposit.

19.4 The Client agrees that Goods purchased on Lay-By will not be delivered by EMB until payment of the Price is made in full in accordance with clause 19.2.

 

20 MISCELLANEOUS

20.1 EMB may assign, sub-contract or sub-let the whole or any part of the Works or EMB’s obligations under an Agreement, without seeking the consent of the Client.

20.2 The Client may not assign, sub-contract or sub-let any part of the Works, or any of its rights, liabilities, or obligations under any Agreement, without the prior written consent of EMB.

20.3 The covenants, agreements and obligations contained in any Agreement and these Terms and Conditions will not merge or terminate upon the repudiation or termination of the Agreement and to the extent that they have not been fulfilled
or satisfied or are continuing obligations they will remain in force and effect.

20.4 Any waiver by EMB must be in writing signed by EMB. Failure by EMB to enforce any right or remedy is not a waiver of any right or remedy, or a waiver in respect of a continuing breach.

20.5 If any provision contained in these Terms and Conditions is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions in these Terms and Conditions are not affected.

20.6 These Terms and Conditions and the Agreement are governed and are to be construed in accordance with the laws in force in the State of Western Australia.

20.7 These Terms and Conditions and the Agreement are subject to the exclusive jurisdiction of the Courts of Western Australia.

 

21 RECEIPT AND ADVICE

21.1 The Client hereby acknowledges receipt of these Terms and Conditions and agrees to be bound by them. The Client accepts these Terms and Conditions in acknowledgement that they are legally binding and presently enforceable. The Client further acknowledges that it has had the opportunity to obtain independent legal advice and that the Client understands the Terms and Conditions outlined above.