STANDARD TERMS & CONDITIONS
1 Supply Agreement
1.1 These Standard Terms and Conditions (“Terms”) shall apply to all Goods and Services supplied by Ex-Parrot Pty Ltd trading as The Greenwall Company (“TGC”, “We”, or “Us”) to You.
1.2 These Terms, together with:
(a) any Proposal signed by You; and
(b) the Maintenance Service Agreement requested or signed by You
set out the complete terms of the agreement (“Agreement”) between You and Us. The provision or acceptance of a service agreement shall not form a separate agreement between You and Us, but shall constitute part of this Agreement. Any terms contained in any document supplied by You, including any terms on Your purchase order, will not form part of this Agreement.
1.3 TGC may wish to vary these Terms from time to time. If We intend to do so We will give You 28 days’ written notice of our varied terms. If You have reasonable grounds to believe the change will be detrimental to Your rights, You may terminate this Agreement within 28 days of receiving Our written notice.
2 Requests, Proposals and Pricing of Fees
2.1 You may request TGC to provide any Goods or Services to You. TGC is not obliged to provide any Goods or Services to You, but may in its discretion supply such Goods or Services subject to this Agreement and TGC’s standard pricing, in which case the Fees will be in accordance with the standard pricing as varied from time to time.
2.2 Prior to supplying, TGC may in its discretion provide a Proposal to You setting out pricing which is different to Our standard pricing. If You accept a Proposal, the Fees will be as set out in a Proposal, subject to variation in accordance with this Agreement.
2.3 Where TGC carries out any additional work not covered by the terms of a Proposal, then the additional work shall be subject to these Terms unless expressly otherwise provided and the Fees shall be increased by the amount quoted for such extra work, or if no fee is quoted, an amount calculated at TGC’s standard pricing.
3 Payment of Fees
3.1 You shall pay TGC the Fees on or prior to the delivery of the Goods or Services requested by or within 14 days from the date of the issue of an invoice for Services.
3.2 If TGC grants You payment terms or credit in writing signed by an authorised officer of TGC, or otherwise sets out different payment terms in a Proposal or Maintenance Service Agreement, then such terms will vary clause 3.1 above.
3.3 The Fees charged for Goods and/or Services may be varied by TGC from time to time by giving 28 days’ written notice to You. This will apply even if you accept a Proposal, but only to Goods or Services supplied after the notice of variation. If you do not accept the increase to Fees, you may terminate this Agreement within 28 days of receiving Our written notice. Fees charged for Services comprising labour will be increased annually when wage or associated costs are increased. Such increases include, but are not limited to, increases to applicable award rates of pay, compulsory superannuation increases, compulsory portable long service leave schemes, and government taxes.
3.4 You will be required to pay all Fees due to TGC upon receipt of any request for payment under this clause and You will be charged the reasonable cost of all expenses, including legal costs incurred in the enforcement of any notice of default. TGC may charge and you agree to pay interest on any outstanding amounts at the rate of 1.5% per month. Interest accrues daily from (and including) the due date to (but excluding) the date of actual payment and is calculated on actual days elapsed and a year of 365 days per month.
4 GST
4.1 Where a supply under these terms and conditions is or becomes subject to a GST, an amount equal to the GST paid or payable in respect of that supply shall be added to the amount exclusive of GST paid or payable for that supply under these terms and conditions.
4.2 The provisions contained in clause 4.1 apply notwithstanding any other clause of these terms and conditions whatsoever.
4.3 Each party agrees to do all things, including providing invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any credit, set-off, rebate or refund in relation to any amount of GST paid or payable in respect of any supply under these terms and conditions.
4.4 In this clause GST has the meaning it has in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
5 Term and Termination
5.1 A Proposal or Maintenance Service Agreement may specify a minimum term for the supply of Services.
Upon expiration of a minimum term or if no minimum term is specified, this Agreement will remain in force until a party gives one (1) month’s written notice to the other party of termination.
5.2 Either party may terminate a supply if:
(a) the other party commits any material or persistent breach of its obligations under this Agreement which in the case of a breach capable of remedy, shall not have been remedied within 14 days of receipt by the party in breach of a notice identifying the breach and requiring its remedy or such other reasonable period depending on the circumstances); or
(b) a party has reasonable grounds to believe that the other has, or is about to, become insolvent or where an individual becomes bankrupt or enters into a scheme of arrangement with creditors.
5.3 TGC may terminate this Agreement, or a Proposal or Maintenance Service Agreement, immediately if, in its absolute discretion, the provision of the Goods or Services at any of Your sites poses a risk to any of TGC’s personnel.
5.4 Termination under this clause must be effected by written notice served on the other party. Termination under this clause shall be without prejudice to any rights that may have accrued for either of the parties before termination and all sums due under this Agreement shall become payable in full when termination takes effect.
5.5 If You wish to terminate or cancel a supply of Maintenance Service Agreement prior to the expiry of the minimum term, You will be required to pay a fixed amount as specified in the Maintenance Service Agreement. If you are cancelling a signed Proposal prior to its full completion, the full value of the proposal is due and payable.
5.6 TGC may suspend provision of Services immediately and for such period as TGC considers appropriate if any monies owing to TGC are due and unpaid.
6 Liability
6.1 This Agreement shall be subject to any rights conferred upon TGC and You by the Competition and Consumer Act 2010 or similar legislation which cannot by agreement or otherwise be excluded, restricted or modified. Where any warranty or condition cannot be excluded then liability shall be limited to, at the election of TGC, repair or replacement in the case of Goods, or supplying the Services again or the payment of the cost of resupplying the Services in breach of such warranty or condition.
6.2 TGC will not be liable to You for:
(a) Any loss or damage sustained to any person or to any property howsoever caused, arising out of or in connection with this Agreement, a health pandemic, or a Force Majeure Event;
(b) any indirect, consequential, special or economic loss, cost or liability;
(c) any loss or damage suffered by You except if such loss or damage is caused by the sole negligence of TGC or its employees.
6.3 Notwithstanding any other provision of this Agreement, liability of TGC whether in contract, tort (including negligence), in equity, under statute, or under an indemnity, or otherwise will be limited to a maximum amount equal to the annual contract value of this Agreement, in respect of the aggregate of all claims arising out of or in relation to any one event or series of events.
6.4 You shall notify TGC in writing of any claim within one (1) month from the occurrence of any event that gives rise to a claim under this Agreement. If no such notice is given You will be deemed to have waived and abandoned completely any such claim which after the expiration of such period shall not be allowable or admitted. Time shall be of the essence in this clause.
6.5 You shall keep TGC indemnified at all times against any loss arising from claims made against TGC by any party with respect to any theft, loss, damage, destruction, health pandemic, death or injury arising out of or in connection with the provision or failure to provide the Services except in the case of negligence on the part of TGC, its employees or agents.
7 Your Sites
7.1 You authorise TGC and its representatives to enter Your Sites for the purpose of this Agreement.
7.2 You warrant that each of Your Sites is a safe place of work and free of harmful materials, asbestos, transmissible diseases.
7.3 You will take all reasonable steps to ensure Your Sites are free from risks.
7.4 You will obtain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
7.5 You will comply with all applicable workplace health and safety laws.
7.6 You release and indemnify TGC from and against any liability arising out of, or in connection with, a breach of this clause.
8 Intellectual Property
8.1 TGC retains all rights, title and interest subsisting in any design(s), documentation, diagrams or plans and other information and materials (“TGC Materials”) supplied to You for the purposes of carrying out the Services under this Agreement.
8.2 Where You supply any design(s), documentation, diagrams or plans and other information and materials (“Customer Materials”) under this Agreement, You retain all right, title and interest in such Customer Materials but grant TGC a perpetual, irrevocable, royalty free non-exclusive licence to use, reproduce and modify Customer Materials to enable TGC to fulfil its obligations under this Agreement. You agree to accept full responsibility for all Customer Materials provided to TGC under this Agreement and to indemnify TGC for any action, claim, liability, cost or expense arising out of any threatened or actual infringement of intellectual property rights arising out of the use by TGC of Customer Materials.
9 Dispute Resolution
9.1 The parties agree that they must initially use all reasonable endeavours to resolve any dispute arising under this Agreement within 10 business days of a party being advised by written notice of such a dispute.
9.2 If the parties are unable to resolve the dispute within that time frame they must refer the dispute to an executive officer from each party to resolve. The parties will again use all reasonable endeavours to resolve the dispute within a further 10 business days or such other reasonable period agreed between the parties.
9.3 If the dispute is not resolved in accordance with sub clause 9.2, the parties may either agree to refer the matter to mediation or some other form of alternative dispute resolution or commence legal proceedings.
10 Force Majeure
10.1 TGC will not be in breach of this Agreement or be liable to another party if TGC fails to perform or delays in the performance of an obligation as a result of a Force Majeure Event.
11 Disclosure and use of Personal Information
11.1 By entering into this Agreement, You agree that unless indicated otherwise in a Proposal, that TGC may forward to You from time to time promotional material and information regarding any of TGC’s Goods and Services.
11.2 By entering into this Agreement, You consent to TGC’s collection of Your personal information for the purpose of providing You with the Services under this Agreement, TGC may disclose Your personal information to other organisations that assist TGC in the provision of these services including related bodies corporate, subcontractors, marketing organisations and relevant banking or financial authorities.
12 Credit Enquiries and Credit terms
12.1 You agree that if TGC requires financial information about You for any application for credit on terms which attract the operation of the Privacy Act 1998, by seeking or enquiring about credit, You specifically agree and acknowledge that TGC may:
(a) disclose to a credit reporting agency certain personal information about You including information contained in this Agreement, Your identification, the amount of credit applied for, payments overdue by more than 60 days, advise the payments are no longer overdue, a serious credit infringement which TGC believes You have committed; and the discharge of the credit facility (if granted one);
(b) in assessing the application for credit and any later request for credit, obtain from a credit reporting agency a credit report containing personal credit information, information about commercial activities orcommercial worthiness;
(c) provide to or obtain from any credit provider(s) named in a credit report information about Your personal or commercial credit arrangements including information relating to credit worthiness, credit standing, credit history; or credit capacity.
12.2 If TGC approves Your application for credit, Your consent and acknowledgement in this Agreement will remain in force until the full amount owing to TGC under the credit facility is paid.
12.3 TGC will approve Your application for credit in its absolute discretion and TGC reserves the right to withdraw any Proposal, cancel the Services, and terminate this Agreement should such credit assessment be unsatisfactory to TGC.
13 Personal Property Securities Act
13.1 Terms used in this clause are defined in the Personal Property Securities Act 2009 (Cth).
13.2 If you request the supply of Goods on credit terms, or are supplied Goods prior to payment in full, then
(a) TGC will retain title to such Goods until you have paid for those Goods in full;
(b) You grant to TGC a purchase money security interest (“PMSI”) in those Goods; and
(c) You indemnify TGC for the cost of registration and enforcement of the PMSI.
13.3 If we supply you Goods on a lease for a period of 12 months or more, then:
(a) TGC grants to you a PPS Lease in respect of those Goods; and
(b) You agree to, and indemnify TGC for the cost of, the registration and enforcement of the PPS Lease.
14 Miscellaneous
14.1 Assistance. You will give TGC and its employees and contractors all
assistance reasonably requested by TGC to enable TGC to supply the Goods and/or Services to You.
14.2 Confidentiality. Each party shall treat as confidential all information which comes into its possession, pursuant to or as a result of or in the performance of this Agreement, whether such information relates to the business, sales, marketing or technical operations of the other party or the clientele of the other party or otherwise. Neither party shall, without the written permission of the other, disclose such confidential information to a third party. This obligation does not apply if the information is already in the public domain without any breach of this Agreement of if the disclosure is required by law.
14.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, contracts, statements and understandings, whether verbal or in writing. All other terms and conditions are excluded to the fullest extent permitted by law including any terms and conditions which You may seek to impose.
14.4 No Waiver. No right under this Agreement will be deemed to be waived except by notice in writing signed by each party and any failure by TGC to enforce any clause of this Agreement, will not be construed as a waiver of TGC’s rights under this Agreement.
14.5 Severability. Should any part of this Agreement for any reason be held to be invalid, unenforceable or illegal, such judgment or holding will not affect, impair or invalidate the remainder of this Agreement but shall be confined in its operation to the part of this Agreement directly involved in the matter of proceeding and the remainder of this Agreement will remain in full force and effect.
14.6 No Set Off. You may not set off any amounts owing to TGC under this Agreement against any amounts owed by TGC to You..
14.7 Notice. Any notice or other communication to be given under this Agreement must be in writing and in English and served personally, by mail or by email to the other party.
14.8 No Assignment. You shall not assign any of Your interest in this Agreement without the prior written consent of TGC, which shall not be unreasonably withheld. TGC may at any time assign, sub-contract or license any part of its rights and obligations under this Agreement.
14.9 Acceptance of terms. You do not need to sign these Terms to accept them, and requesting TGC to supply Goods or Services will be deemed acceptance of these Terms.
14.10 Further Action. Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by it.
14.11 You agree to comply with all laws, including without limitation, those laws relevant to TGC’s provision of the Goods or Services to You.
14.12 Law and Jurisdiction. This Agreement is subject to the laws of New South Wales. The parties unconditionally submit to the jurisdiction of the courts of New South Wales.
15 Interpretation
15.1 The section headings in this Agreement are used for convenience only, are not substantive, and shall not be interpreted to define, describe, or otherwise limit the interpretation of the provision under the section headings or of the Agreement as a whole.
15.2 In this Agreement:
(a) Fees means the fees payable for Goods and Services provided by TGC to You.
(b) Force Majeure Event means an event beyond the reasonable control of TGC, including but not limited to, acts of God, natural disasters, extreme weather conditions, storms, lightning strikes, fires, floods, health pandemics or epidemics, acts of war or terrorism, riots, civil disturbances, explosions, national emergencies, strikes, labour disputes, significant or sustained disruption to power services, embargoes, mechanical breakdowns, road closures, peak hour traffic, delays at other customers’ premises, and high occurrences of Alarm Responses.
(c) Goods means any goods supplied by TGC to You, including but not limited to eco green walls, eco roof pillows or eco gabions.
(d) Proposal means a written proposal describing the Goods and Services to be supplied to You by TGC and the applicable Fees.
(e) Services means the services provided by TGC to You under this Agreement comprising any or all of Installation, Maintenance Services, and any additional services as required from time to time during the term of this Agreement.
(f) Site means Your premises, or premises You request TGC to attend.
(g) You means the person (including an entity) which requests Goods and/or Services from TGC.
16 Maintenance Services
16.1 You agree and acknowledge that TGC’s maintenance services do not include work required to be done to repair a defect or damage which is caused by Your negligence, fault, neglect, abuse or incorrect use, including not maintaining the living infrastructure on your site.
16.2 Any repair or defect services required by You will be regarded as additional services and You must pay TGC’s costs for such services at our standard rates. You acknowledge that it is Your responsibility to pay the cost of replacement batteries for the irrigation system.
16.3 Unless agreed otherwise in this Agreement all Maintenance Services will be performed during Normal Working Hours, Monday – Friday, 8:00am – 4:30pm.
16.4 TGC is not liable for any claims made for injury, loss or damage caused to You resulting from any failure by TGC to provide maintenance services due to Your failure to give TGC access to the Site for such services.
16.5 If You fail to give TGC access to the Site for the purpose of carrying out maintenance services after having been requested TGC to do so, TGC may be entitled to keep for TGC’s benefit that part of any prepaid Fees received from You which is equivalent to TGC’s direct cost incurred in arranging the relevant maintenance services
