UV Guard Australia PTY LTD – Terms and Conditions of Sale 2023
Accrediting Authority means any government, regulatory or other accrediting authority regulating, or whose approval is required for, the Installation, Commissioning or operation of the Goods, including the Site’s relevant local council.
Agent means, in relation to a party, that party’s directors, officers, employees, contractors, agents, representatives, and anyone acting for or on behalf of that party.
Client means the person or entity purchasing Goods from UV Guard, as specified in the Order.
Collection Date means (where Delivery has not been requested in the Order) the date specified in the Order Acceptance as the date that the Goods will be available for collection by the Client from the Production Facility.
Commissioning means the initial activation of the Goods at the Site following Installation.
Confidential Information means any information of any type in any form or medium disclosed, provided or made available by UV Guard to the Client in connection with a Contract that is by its nature or regarded by UV Guard as confidential, proprietary, of commercial value or sensitive including without limitation UV Guard’s IPR, Manuals, Goods’ related know-how, technology, hardware, software, trade secrets, designs, methods, techniques, strategies, plans, processes and procedures, but excluding information which is or becomes generally available to the public other than as a result of a breach of the Contract by the Client.
Contract means the agreement between UV Guard and the Client in relation to the supply of Goods by UV Guard to the Client, comprised of an Order, any proposal or quote of UV Guard that the Order refers to, an Order Acceptance and these Terms.
Contract Price means the total consideration payable by the Client to UV Guard in relation to a Contract, including without limitation the Goods Price and (if applicable), the price of Delivery, Installation and Commissioning.
Delivery means the delivery of the Goods from the Production Facility to the Client or the Site as requested by the Client in writing (in the Order or otherwise).
Deposit means the deposit amount payable by the Client to UV Guard immediately after Order Acceptance, representing part payment of the Contract Price (as specified in the Contract).
Distributor means a person or entity authorised by UV Guard to purchase goods from UV Guard Goods for resale to Owners.
Distribution Agreement means the agreement between UV Guard and a Distributor in relation to the resale of Goods by the Distributor.
Estimated Delivery Date means (where Delivery has been requested in the Order) the estimated date specified in the Order Acceptance as the date that the Goods will be dispatched from the Production Facility for Delivery to the Client at the Site.
Force Majeure Event means an act of God or nature, war, terrorist attack or action, an unlawful act against public order, an industrial strike or action, or a similar event beyond the reasonable control of a party.
Goods means the goods and/or services supplied by UV Guard to the Client as specified in the Contract.
Goods Price means the price payable by the Client to UV Guard for Goods to be supplied under a Contract, as specified in the Contract, excluding GST and any requested Delivery, Installation, Commissioning, insurance and any other costs and expenses associated with the supply of the Goods.
GST means the Goods and Services Tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Holding Costs equals $250 per square metre footprint of the Goods, per day.
Installation means the installation of the Goods at the Site.
Installation Terms means the terms and conditions relating to the Installation and/or Commissioning set out in clauses 17 and 18 of these Terms, applicable only if Installation and/or Commissioning is included in the Contract.
Insolvent means, in relation to a party, when the party fails to pay its debts as and when they fall due, becomes bankrupt, insolvent, seeks protection from its creditors or an agreement with them in relation to arrangement of its debts, or becomes subject to administration, receivership, liquidation, winding up or similar procedures.
Intellectual Property Rights or IPR means all proprietary and intellectual property rights of any kind throughout the world, whether registered, patentable or not, including (without limitation) copyrights, patents, designs, circuit layouts rights, trade secrets, know-how, trademarks, service marks, trade names, domain names and any right to apply for registration or renewal of any such rights.
Invoice means any tax invoice issued by UV Guard to the Client in relation to the payment of the Contract Price by the Client to UV Guard (whether in whole or in part).
Loss means any loss, damage, cost, expense or liability of any kind, howsoever and whenever arising.
Manuals means any manual provided or made available by UV Guard containing information relating to the Goods and their use, operation, servicing and maintenance, including without limitation the owner manual and service manual.
Manufacturer’s Warranty means any written warranty provided by UV Guard to the Client in relation to the Goods as set out in the Manuals.
Order means an order for the purchase of Goods, with or without Installation and Commissioning, submitted by a Client to UV Guard.
Order Acceptance means the acceptance by UV Guard of an Order in accordance with clause 2.5.
Order Form means the form prescribed by UV Guard for submission of Orders, as attached to these Terms or otherwise approved by or acceptable to UV Guard.
Owner means the person or entity who is the ultimate owner and user of the Goods.
PPSA means the Personal Property Securities Act 2009 (Cth) and all regulations made thereunder, as amended from time to time.
Prescribed Terms means terms, conditions and warranties implied in whole or in part by law into a contract for the supply of goods or services, which may not be excluded or limited.
Price List means the list of the prices payable for the different services and products offered by UV Guard (including Installation and Commissioning), as updated from time to time. Practical Completion has the meaning set out in clause 18.1.
Production Facility means the facility from which UV Guard dispatches Goods to a Client.
Site means the location designated by the Client for receiving the Goods (and if such location is outside Australia, the port designated by the Client for receiving the Goods), as specified by the Client in the Order or otherwise notified by the Client to UV Guard in writing prior to the Delivery of the Goods.
Servicing means the servicing and maintenance of the Goods.
Terms means the terms and conditions set out in this document relating to the supply of Goods by UV Guard to the Client, including the Installation Terms if applicable.
UV Guard means UV Guard Australia Pty Ltd (ABN 79 601 193 444).
UV Guard’s IPR means all IPR owned or licensed by UV Guard, in accordance with clauses 8.1 and 9 or otherwise.
2. ORDER AND ORDER ACCEPTANCE
2.1 The Client must obtain a written quote from UV Guard, together with all then current information available in relation to the Goods (including without limitation the dimensions and specifications of the Goods), UV Guard’s availability of supply, Delivery, Installation and Commissioning, prior to placing an Order. The Client must not rely on publicly available information which may not be fully accurate or up to date.
2.2 Prior to placing an Order, it is the Client’s responsibility to confirm that the Goods to be ordered fit the Client’s intended use and designated Site.
2.3 An Order must be submitted by the Client to UV Guard on the Order Form. The Order Form must be fully completed and signed by the Client. The Order should specify all information required for the supply of the Goods by UV Guard including the quote of UV Guard it refers to, the type and quantity of Goods ordered, the Goods Price as quoted or made available by UV Guard to the Client, the Site details, the Delivery requirements, if Installation and/or Commissioning are requested and any other specific requirements.
2.4 An Order constitutes an offer to purchase the Goods specified in the Order in accordance with these Terms, and it is subject to the Order Acceptance by UV Guard. A Contract to supply the Goods to the Client by UV Guard is not formed unless and until Order Acceptance takes place.
2.5 Order Acceptance takes place when UV Guard, at its sole discretion, acknowledges in writing (by email or otherwise):
(a) receipt of the Order;
(b) confirms the Contract Price specified in the Order; and
(c) advises the Collection Date; or
(d) advises the Estimated Delivery Date (and, where applicable, the Installation and/or Commissioning timeframe).
2.6 The Client must pay the Deposit in clear funds to UV Guard within 2 business days after UV Guard’s Order Acceptance. UV Guard’s obligation to supply the Goods to the Client is conditional on UV Guard first receiving from the Client payment of the Deposit in cleared funds.
2.7 If the Contract Price specified in the Order is different from the price quoted by UV Guard, the UV Guard quote is out of date or the Order particulars as stated in the Order otherwise require a different Contract Price, UV Guard will notify the Client of the correct Contract Price and Order Acceptance will not take place unless and until the Client confirms in writing to UV Guard the Client’s authority to amend the Order to show the correct Contract Price.
2.8 Any Client request to change the Order particulars (including by adding Delivery, Installation and/or Commissioning requirements) after Order Acceptance by UV Guard must be in writing and is subject to UV Guard’s written approval. If the requested change results in Contract Price variation, UV Guard will not accept such change until the Client agrees in writing to the Contract Price variation, and absent such Client written consent to the Contract Price variation the Contract will remain unchanged.
2.9 UV Guard may from time to time stop manufacturing or supplying or change the specifications (including weights and dimensions) of any Goods in whole or in part, without any obligation to the Client other than the obligation to supply Goods under any Order already accepted by UV Guard in accordance with its terms.
3.1 The Goods Price and any prices included in the Order and the Price List are exclusive of GST and any other taxes and duties payable in respect of the supply of Goods by UV Guard. The Client must add to any payment of the Contract Price made to UV Guard an amount equal to the GST and any other tax and duty amount applicable to the supply of the Goods by UV Guard to the Client under the Contract, in accordance with the relevant Invoice or otherwise.
3.2 The Price List is subject to change without notice at UV Guard’s sole discretion.
3.3 Subject to clauses 2.7 and 12, the binding Contract Price is the price specified in UV Guard’s Order Acceptance and Invoices.
4.1 The Client must pay the Contract Price in accordance with the payment terms specified in the Contract and any applicable Invoice, without any deduction or set off. Unless otherwise specified in the Contract, the Client must pay the Contract Price to UV Guard as follows:
(a) the Deposit must be paid within 2 business days after Order Acceptance by UV Guard; and
(b) the balance of the Contract Price must be paid on or before the earlier of the Collection Date, the Estimated Delivery Date or the dispatch of the Goods to the Client from the Production Facility.
4.2 All amounts payable by the Client to UV Guard in connection with any Contract will become immediately due and payable in the event that the Client becomes Insolvent or breaches any of its payment or other material obligations under the Contract and fails to remedy such breach within 7 days after being requested by UV Guard to do so.
4.3 If the Client fails to pay UV Guard in full any amount due or payable under the Contract for more than 7 days after its due payment date, the Client must pay interest on any such overdue unpaid amount at an annual rate of 5% (five per cent) above the Reserve Bank of Australia’s benchmark ‘cash rate’ as published from time to time. Such interest will accrue on a daily basis from the due date of payment until the date of actual payment.
4.4 The Client must accept the Goods on the Collection Date or the Estimated Delivery Date (as applicable). If the Client chooses not to receive the Goods on the Collection Date or the Estimated Delivery Date (as applicable) then the Client will pay UV Guard Holding Costs and interest as per clause 4.3 until such time as the Goods are collected or delivered. Fees payable under this clause 4.4 are payable prior to the release of the Goods.
4.5 Without derogating from clauses 10 or 4.2 or any other right or remedy available to UV Guard under any law, contract or otherwise, if the Client fails to pay UV Guard in full any amount payable by the Client to UV Guard on its due date, UV Guard may (at its sole and absolute discretion) take any one or more of the following actions:
(a) defer (without penalty) Delivery, Installation and Commissioning of the Goods, and retain possession of any Goods ordered by but not yet delivered to the Client (under the subject Contract or under any other contract) for so long as any amount remains overdue;
(b) refuse to accept any further Orders placed by the Client;
(c) deduct from any Deposit or other money already paid by the Client to UV Guard in connection with any other contract between UV Guard and the Client (or otherwise any money owed by the Client to UV Guard), and UV Guard will not be obliged to deliver the Goods for which the Deposit was paid to the Client until UV Guard receives from the Client all amounts owed by the Client to UV Guard;
(d) repossess any Goods already delivered to the Client. For this purpose, UV Guard may at any time without notice enter into any property or location (including land, building, vehicle, and vessel) possessed or occupied by the Client or where the Goods are reasonably thought to be situated and take all steps required to retake possession of the Goods at the expense of the Client (including dismantling anything into which the Goods have been incorporated). The Client must reimburse UV Guard at its request for all Losses incurred by UV Guard directly or indirectly in connection with the exercise of UV Guard’s rights under this sub-clause 4.5(d);
(e) treat the Client’s failure to pay as a repudiation of the Contract by the Client, terminate the Contract, forfeit the Deposit, and recover damages for breach of Contract; and
(f) exercise any security interest UV Guard has under the Contract and any other applicable law, common law, or equity.
5.1 The Client gives a security interest over the Goods to UV Guard to secure any overdue amounts owed to UV Guard by the Client in connection with the Goods, any Contract or otherwise and for all costs and expenses incurred by the Company in enforcing the Contract or security interest. UV Guard may exercise the security interest at any time and place in any manner as UV Guard deems fit at its sole discretion, and UV Guard will not be liable to the Client or any person for any loss, damage, cost, expense or liability of any kind incurred or suffered by them in connection for the exercise by UV Guard of its rights under the security interest.
5.2 If requested by UV Guard, the Client must sign any document or form to perfect the grant of the security interest by the Client to UV Guard within 2 business days of the request.
5.3 The Client hereby appoints each director of UV Guard as its joint and several attorney to sign any form or document which the Client fails to sign pursuant to clause 5.2, and the Client agrees to ratify any such form or document signed pursuant to this clause 5.
6 COLLECTION AND DELIVERY
6.1 Unless Delivery is expressly included in the Contract, the Client is responsible for the collection of the Goods at its expense. The Client must co-ordinate with UV Guard in advance of the Collection Date, the date and manner that the Goods will be collected, including providing notification in writing of the relevant carrier’s details and the scheduled date for collection.
6.2 If the Client expressly requests in the Order (or after Order Acceptance in accordance with clause 2.8) that UV Guard will arrange the Delivery, the Client must pay for all Delivery costs and expenses as specified in the Order Acceptance or relevant Invoice (as the case may be), and UV Guard will arrange for Delivery as requested by the Client (subject to the payment in full by the Client of all Delivery costs and expenses).
6.3 If Delivery is to a destination outside Australia, the Client is responsible for and must arrange (at its cost) the transport of the Goods to the Site from the port which was designated as the Delivery destination.
(a) the Client is responsible for the collection of the Goods in accordance with clause 6.1, UV Guard is discharged of all its obligations in relation to the Delivery of the Goods, and all risk associated with the collection of the Goods passes to the Client upon uploading the Goods at the Production Facility on board the carrier engaged by the Client for the collection, and the Client must insure the Goods for their full replacement value against any loss, damage, or liability that is associated with the collection and at the risk of the Client in connection with the Contract and that is otherwise expected to be covered by a prudent purchaser in the position of the Client.
(b) UV Guard is responsible for the Delivery in accordance with clause 6.2, UV Guard is discharged of all its obligations in relation to the Delivery, and all risk associated with the Delivery passes to the Client upon the Goods arriving at the Site (or, if Delivery is to a destination outside Australia, upon the Goods arriving at the port which was designated by the Client as the Delivery destination), and UV Guard is responsible to insure the Goods for their full replacement value against any loss, damage, or liability associated with the Delivery that are at the risk of the UV Guard.
6.5 The Client must notify UV Guard in writing of any damage or defect to the Goods within 7 days of the Goods arriving at the Site (or, if UV Guard has agreed in writing to provide Installation and/or Commissioning, within 7 days of the Installation and/or Commissioning). Failure to notify UV Guard of any damage or defect to the Goods within that period will constitute conclusive proof that the Goods have been received by the Client without any damage or defect.
7 PROPERTY AND RISK
7.1 Notwithstanding clause 6, title and ownership in the Goods remains exclusively with UV Guard and does not pass to the Client until UV Guard has received payment in full in cleared funds of the Contract Price in accordance with the Contract and any relevant Invoice and of all other amounts owing to UV Guard (and its associates) by the Client.
7.2 Until title and ownership in the Goods pass to the Client in accordance with this clause 7, the Client must:
(a) hold the Goods as fiduciary bailee and agent for UV Guard, must clearly mark the Goods as UV Guard’s property, and keep and store them separately from any other assets in a manner which enables the Goods to be identified as UV Guard’s property and cross referenced to UV Guard’s respective Invoices; and
(b) not sell, assign, dispose, part possession of, or otherwise deal with any of the Goods.
8 INTELLECTUAL PROPERTY
8.1 All IPR in or relating to:
(a) the Goods and the Confidential Information are and will remain the sole and exclusive property of UV Guard (or its licensors);
(b) any improvement, invention, discovery, or work product developed or created by UV Guard in performing its obligations under a Contract are and will remain the sole and exclusive property of UV Guard; and
(c) any improvement, invention, discovery, or work product developed or created by the Client or its Agents in using, operating or maintaining the Goods, or performing the Client’s obligations under a Contract or based on the Confidential Information (Client Improvements), will become the sole and exclusive property of UV Guard. The Client must promptly disclose the Client Improvements to UV Guard and sign and do anything required to assign to UV Guard all IPR in and relating to the Client Improvements and to register, protect, and secure UV Guard’s IPR in relation to the Client Improvements.
8.2 By submitting an Order, the Client waives any existing or future rights or claims in relation to any Client Improvements and irrevocably appoints each of UV Guard’s directors or their nominees as the Client’s attorney if the Client fails or neglects to sign any document or do any act or thing necessary or required under this clause 8.
8.3 Without UV Guard’s prior written consent, the Client must not, and must ensure its Agents will not:
(a) copy, reverse engineer, alter, modify, reproduce, customize, decompile, or disassemble the Goods or UV Guard’s IPR in whole or in part;
(b) transfer, assign, sell, grant, sub-license, distribute, or otherwise deal with UV Guard’s IPR in whole or in part;
(c) create or develop any derivative material or item based on, incorporating, using, or adding to the Goods or UV Guard’s IPR in whole or in part; or
(d) remove any copyright notices, trademarks, or restricted rights legends which appear on any Goods’ components.
8.4 The Client must notify UV Guard of any suspected or actual:
(a) infringement of the IPR in and relating to the Goods by a third party; and
(b) claims alleging infringement of third party rights in connection with the Goods,
that the Client or its Agents becomes aware of, and the Client must co-operate with and assist UV Guard (at UV Guard’s cost) to protect UV Guard’s IPR in and to the Goods and oppose any third party claim against them.
8.5 Subject to clause 9.1, the sale of Goods to the Client does not grant or imply any right to the Client other than the right to use the Goods in accordance with the Contract, the Manuals, UV Guard’s instructions, and any applicable Distribution Agreement.
9 CONFIDENTIAL INFORMATION
9.1 All right, title, and interest in the Confidential Information vest and remain exclusively in UV Guard. Nothing in the Contract or the disclosure of Confidential Information grants or implies any rights to the Client in relation to the Confidential Information except for the non-transferable right to use the Confidential Information in connection with the Goods’ installation, use, operation, and maintenance.
9.2 The Client must, and must procure that its Agents will, keep the Confidential Information confidential at all times and protect it from unauthorized use, disclosure, or third party access. The Client must notify UV Guard as soon as the Client becomes aware of, and do all the Client reasonably can to prevent or minimize, any actual or suspected theft, loss, damage, unauthorized use of, or disclosure of any Confidential Information, and the Client must comply with UV Guard’s instructions in relation to handling the situation.
9.3 The Client must not, and must procure that no Client Agent will, without UV Guard’s prior written consent:
(a) disclose, copy, record, communicate, make available or allow access to the Confidential Information, directly or indirectly, to any third party, or assist or permit any person to do so, except as required for the purpose of the Goods’ installation, use, operation or maintenance, or is required by law or an Accrediting Authority, provided the Client ensures the Confidential Information remains protected in accordance with this clause 9; or
(b) create or develop anything based on, derived from, or in any way using the Confidential Information directly or indirectly.
9.4 The Client acknowledges and agrees that a breach of this clause 9 may cause damage or loss to UV Guard for which a monetary remedy may not be adequate or sufficient, and UV Guard may seek specific performance or an injunctive or other relief from a court of competent jurisdiction as a remedy for any actual or anticipated breach by the Client, in addition to any other right or remedy available to UV Guard under the Contract, at law or otherwise.
10.1 UV Guard may terminate a Contract by a notice in writing to the Client if:
(a) the Client becomes Insolvent;
(b) the Client fails to pay any amounts due by the Client to UV Guard in connection with the Contract within 14 days of being requested in writing by UV Guard to do so; or
(c) in accordance with clause 12.2(b) or 12.3.
10.2 The Client may terminate a Contract if:
(a) UV Guard fails to supply the Goods to the Client within 30 days after their due delivery date other than due to an act or omission of the Client or its Agents, and does not deliver the Goods within 14 days of being requested in writing by the Client to do so; (b) in accordance with clause 12.2
(b) or 12.3; or
(c) as permitted by any Prescribed Terms, if applicable, in which case the Client may terminate the Contract by giving 30 days written notice to UV Guard (unless otherwise specified in the Prescribed Terms).
10.3 In the event of termination of the Contract for any reason, other than due to UV Guard’s failure to supply the Goods in accordance with clause 10.2
(b) or 12.3, the following amounts become immediately due and payable by the Client to UV Guard and must be paid by the Client to UV Guard without delay:
(a) the aggregate Goods Price of all Goods which are completely manufactured and allocated to the Client at the time of termination;
(b) the manufacturing costs plus a margin of 20% thereon incurred in relation to Goods which have not been completely manufactured at the time of termination (and whenever practicable to do so to reduce costs at UV Guard’s sole discretion, UV Guard may divert completed parts, material or work-in-progress from a terminated Contract to other contracts); and
(c) all costs directly and indirectly incurred by UV Guard in connection with the termination of the Contract, all monies payable, due or owing by the Client to UV Guard in connection with any Contract or otherwise on any account (and the provisions of clause 4.3 will apply if the Client fails to pay all such amounts within 7 days of being requested in writing by UV Guard to do so).
10.4 UV Guard will complete supply of any outstanding Order duly accepted by UV Guard in accordance with these Terms prior to the termination date if practicable, provided that UV Guard receives from the Client the full payment in cleared funds of the Contract Price in relation to such Order and any amounts payable by the Client to UV Guard under clause 10.3.
10.5 Any Order submitted by the Client to UV Guard but not accepted in accordance with the Terms prior to the termination date will be cancelled.
10.6 The parties’ obligations under clauses 4, 8, 9, 10.3, 10.4, 10.5, 10.6, and 13 will continue to apply and be binding on the parties after completion or termination of the Contract for any reason, as the case may be.
10.7 Termination of a Contract for any reason does not prejudice any rights a party may have accrued under the Contract or any law up to the date of termination.
11.1 The Client acknowledges that:
(a) the Client must install, maintain, service, and replace the Goods in accordance with the Manuals at all times;
(b) a failure to properly install, maintain, service, and replace the Goods in accordance with the Manuals will invalidate the Manufacturer’s Warranty; and
(c) the Client may be required by an Accrediting Authority to ensure that the Goods are regularly and periodically serviced and maintained by UV Guard (as the manufacturer of the Goods) or otherwise by a designated third party approved by the Accrediting Authority. If such a requirement arises, the Client further acknowledges that in order to satisfy any additional servicing requirements imposed by an Accrediting Authority, the Client should enter into a service agreement with UV Guard or a designated third party approved by the Accrediting Authority.
12 FORCED VARIATIONS AND FORCE MAJEURE
12.1 If due to a change in any applicable law, regulations, approvals, Accrediting Authority requirements or other legal or compliance requirements, UV Guard is required to make changes in relation to the performance of its obligations under a Contract or the Goods (including their specifications or components), and such changes result in a Contract Price variation, Delivery delays or other Contract variations (Contract Variations):
(a) UV Guard will notify the Client in writing of the required Contract Variations; and
(b) UV Guard will have no obligation to supply the Goods to the Client unless and until the Client agrees in writing to the Contract Variations within 7 days of being notified about them by UV Guard.
(a) the Client agrees in writing to the Contract Variations within 7 days of being notified about them by UV Guard, UV Guard will supply the Goods in accordance with the Contract Variations and will not be liable to the Client, and the Client waives any claims it may have against UV Guard, in relation to any Loss suffered by the Client in connection with the Contract Variations; and
(b) the Client does not agree in writing to the Contract Variations within 7 days of being notified about them by UV Guard,
either party may terminate the Contract by a notice in writing to the other party and the provisions of clauses 10.4 to 10.7 will apply. UV Guard will not be liable to the Client, and the Client waives any claims it may have against UV Guard, in relation to any Loss suffered by the Client in connection with such Contract termination.
12.3 Where a Force Majeure Event prevents or delays the performance of any obligation of UV Guard under a Contract, that obligation is suspended as long as the Force Majeure Event continues, provided that if the Force Majeure Event continues for a period exceeding two months, either party may terminate the Contract by giving a written notice to the other party and the provisions of clauses 10.4 to 10.7 will apply. UV Guard will not be liable to the Client, and the Client waives any claims it may have against UV Guard, in relation to any Loss suffered by the Client in connection with such Contract termination.
13 LIMITATION OF LIABILITY
13.1 To the fullest extent permitted by law:
(a) all warranties, terms, and conditions that are not expressly included in the Contract (statutory, common law or other) are excluded. The benefits provided to the Client by the Manufacturer’s Warranty are in addition to other rights and remedies available to the Client under the law. Where the law implies into the Contract any Prescribed Terms, they will be deemed to be included in the Contract to the extent they cannot be excluded and restricted in accordance with this clause 13. To the extent permitted by law, UV Guard’s liability for any breach of such Prescribed Terms will be limited, at the option of UV Guard, to any of the following:
(i) the replacement of the Goods in whole or in part or the supply of equivalent goods;
(ii) the payment of the cost of replacing the Goods in whole or in part or the supply of equivalent goods; or
(iii) the repair of the Goods or the payment of the cost of having the Goods repaired.
(b) UV Guard will not be liable (whether under statute, in contract, in tort (including negligence) or otherwise) for any:
(i) consequential, incidental, or indirect Loss arising in connection with the Contract, including without limitation in connection with the Delivery, storage, handling, Installation, Commissioning, use, operation and Servicing of the Goods, or any loss of profit, reputation, or goodwill;
(ii) Loss due to fair wear and tear of the Goods; or
(iii) Loss arising due to a Force Majeure Event affecting the manufacture, dispatch or Delivery of the Goods, or their Installation and Commissioning.
(c) any liability of UV Guard under or in connection with a Contract will be limited to the portion of the Contract Price paid by the Client to UV Guard under the Contract.
13.2 Subject to clause 13.1 above, UV Guard will not be liable for any defects unless they are covered by the Manufacturer’s Warranty. The Manufacturer’s Warranty will be invalidated by, and UV Guard will not be responsible to any damage or defect to the Goods caused in connection with:
(a) opening of or breaking the manufacturers seal, the electrical equipment (which is designed and manufactured to the specifications of the order), or any additional changes not approved by UV Guard;
(b) the Installation and/or Commissioning of the Goods at the Site without the approval of the Accrediting Authority (if required);
(c) the installation, commissioning, handling, use, operation, maintenance or service of the Goods in a manner not authorized by, not complying or inconsistent with the Contract, any applicable law, any Accrediting Authority requirements, the Manuals, or UV Guard’s instructions;
(d) Installation and/or Commissioning of the Goods by someone not authorised by UV Guard; or
(e) the Client’s failure to ensure the Goods are serviced in accordance with clause 11.
13.3 UV Guard’s right to limit its liability under clause 13.1 is only applicable in relation to Clients who purchase Goods that are of a kind not ordinarily acquired for personal, domestic, or household use or consumption.
14 DISTRIBUTOR CLIENT
14.1 If the Client is a Distributor, the provisions of the Distribution Agreement between UV Guard and the Distributor will apply to the purchase of Goods by the Distributor from UV Guard and to any resale of the Goods.
14.2 In the event of any conflict or inconsistency between the Distribution Agreement and these Terms, the Distribution Agreement will prevail.
15 GOVERNING LAW
15.1 The Contract, including these Terms, will be governed by and construed in accordance with the Laws of New South Wales, Australia and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales.
16.1 The Contract constitutes and embodies the entire agreement between the Client and UV Guard in relation to its subject matter and it supersedes and replaces any previous agreement, arrangement, understanding or communication between the parties in relation to its subject matter.
16.2 Notwithstanding anything to the contrary in any document provided by the Client to the Company, by submitting to the Company an Order for the supply of Goods, the Client agrees to be bound solely by these Terms to the exclusion of any other terms and conditions, and these Terms will prevail over any terms and conditions presented or used by the Client or included or referred to in any document provided to the Company.
16.3 Any variation or amendment to the Contract must be agreed to in writing by all parties to it.
16.4 Any waiver of any right, power or remedy granted to a party under the Contract must be in writing signed by that party. No other conduct of a party (including without limitation a failure or delay in exercising the right, power or remedy) operates as a waiver of or otherwise prevents the exercise of the right, power or remedy.
16.5 Any right, power or remedy granted to a party under the Contract is in addition to and without derogating from any other right, power or remedy granted to that party in any applicable law, equity, agreement, or otherwise.
16.6 A party may not assign the Contract or any right or benefit granted to it under it to any third party other than a related body corporate of that party without the prior written consent of the other party.
16.7 All notices given in relation to the Contract will be provided in writing to the recipient’s contact details as specified in the Contract or as otherwise notified by that party in writing.
16.8 If any provision of this Contract is held by any competent legal authority to be invalid or unenforceable in whole or in part in any jurisdiction, that provision will be modified to the extent required to make it enforceable in that jurisdiction, and if not possible that provision will be severed from the Contract without affecting the validity and enforceability of the other provisions in that jurisdiction and of that provision in other jurisdictions.
16.9 In these Terms, unless the context requires otherwise:
(a) Heading are for convenience only and do not affect interpretation.
(b) The singular includes the plural and conversely and a gender includes all genders.
(c) A reference to a person includes any incorporated or unincorporated entity and conversely.
(d) A reference to a party, clause or schedule is to a party, clause or schedule of the Contract.
(e) A reference to any party includes that party’s successors and permitted assigns.
(f) A reference to any legislation in whole or in part includes any amendment, consolidation or replacement of it and all regulations, proclamations, by-laws, and statutory instruments issues under it.
(g) A reference to a conduct includes (without limitation) any omission, statement or undertaking.
(h) An agreement, representation or warranty on the part of two or more persons binds them jointly and severally.
(i) No provision of the Contract will be construed adversely to a party on the grounds that the party is responsible for its preparation.
(j) In the event of any conflict or inconsistency between these Terms and an Order, the Order as accepted by UV Guard will prevail.
**INSTALLATION TERMS The additional conditions specified below will be incorporated into the Contract where Installation and/or Commissioning of the Goods is included in the Contract (specified in the Order or otherwise agreed in writing between UV Guard and the Client).
17 INSTALLATION AND/OR COMMISSIONING REQUIREMENTS
17.1 The Client must obtain all necessary permits and approvals as required by law or the relevant Accrediting Authority for the Installation and/or Commissioning of the Goods at the Site.
17.2 The Installation and/or Commissioning cannot take place unless and until the Client has confirmed to UV Guard in writing, at least 7 days prior to the Installation date agreed between UV Guard and the Client, that the Client has complied (at its expense) with the Site and Installation specifications and requirements set out in the Contract, the Manuals, or otherwise provided by UV Guard to the Client.
17.3 The Client must provide (or procure that the Owner provides) to UV Guard, at no cost to UV Guard, access to the Site and the Goods as is necessary or required by UV Guard to perform Installation and/or Commissioning in a timely manner. The Client must not, and must ensure no other parties will, interfere with UV Guard’s work, and for this purpose the Client must also co-ordinate the work of any other parties at the Site with UV Guard’s work in consultation with UV Guard.
17.4 Unless otherwise expressly specified in the Contract, the Client must provide (or procure that the Owner provides) to UV Guard, at no cost to UV Guard, all information, utilities, resources and assistance necessary or required by UV Guard for the Installation and/or Commissioning, including without limitation:
(a) proper foundations and other preparations required at the Site in order to receive the Goods;
(b) machinery and equipment including adequate cranage and lifting tackle;
(c) electricity and water supplies, including lighting;
(d) adequate guarding and protection for the Goods; and
(e) suitably qualified personnel familiar with the Site who will ensure the safety and suitability of all Installation and/or Commissioning activities by UV Guard.
18 PRACTICAL COMPLETION
18.1 UV Guard will be deemed to have achieved practical completion when the Installation and/or Commissioning of the Goods (as the case may be) has been completed by UV Guard subject to minor omissions or defects which do not prevent the Goods from being reasonably capable of being used for their intended purpose and do not affect the safety of the Goods, and a certificate acknowledging the above is issued by:
(a) UV Guard to the Client, provided that the Client does not issue an Objection in accordance with clause 18.2, in which case the date of Practical Completion is the date that is 7 days after the date the certificate is issued by UV Guard; or
(b) the Client to UV Guard, in which case the date of Practical Completion is the date the certificate is issued by the Client.
18.2 If the Client wishes to dispute that Practical Completion has been achieved then it must serve an objection in writing to UV Guard within 5 business days of receipt of UV Guard’s certificate issued pursuant to clause 18.1 (Objection). The Client must specify in the Objection its reasons and provide to UV Guard all information requested by UV Guard in relation to the Objection. UV Guard will remedy any defects arising from Installation and/or Commissioning to the extent UV Guard is liable to fix such defects in accordance with clause 13.
19.1 Any costs and expenses associated directly or indirectly with the Installation and/or Commissioning that are in excess of the Installation and/or Commissioning costs specified in the Contract and result from:
(a) any changes, additions or modifications to information, data, or requirements included in the Order that are provided by the Client to UV Guard after the Order Acceptance;
(b) failure of the Client to comply with, or delay in the compliance of the Client with, any of the requirements of clause 17; or
(c) any act or omission of the Client or its Agents inconsistent with the Manuals or UV Guard’s directions and instructions in relation to the Goods delivery, storage, handling or protection, will be borne by the Client and if for any reason those costs are initially met by UV Guard, the Client must indemnify UV Guard for the full amount of all such costs and expenses and such amount (plus any applicable GST) will be added to the Contract Price.