GREENER EVENTS PTY LTD (ABN 61 631 918 753)
(“Greener Events”)
GENERAL TERMS AND CONDITIONS
1. PARTIES
These Greener Events General Terms and Conditions (hereinafter called the “Ts & Cs”) govern
the provision and use of the Service and Goods.
(1) Greener Events is a company registered pursuant to the laws of Australia;
(2) the company or other entity specified in the Order Confirmation (hereinafter called the “Customer”)
(Greener Events and the Customer are hereinafter together called the “Parties” and each a “Party” as appropriate).
2. DEFINITIONS
2.1 In these Ts & Cs, unless the context otherwise requires, the following expressions shall have the following meanings:
Agreed End Date means the date shown on the Order Confirmation for return of the Goods to Greener Events
Artwork means the high definition In Mould Labelling (IML) bonded to the cup during production, as approved by or provided to Greener Events by the Customer and shown on the Order Confirmation
Bill of Lading means the Bill of Lading in relation to the delivery of the Goods to the Port
Customer means the purchaser or the hirer of the Goods.
Confidential Information means all information which is not publicly known or publicly obtainable which is disclosed (whether in writing, orally or by any other means) by Greener Events to the Customer either prior to the entry of the Parties into these Ts & Cs, or directly or indirectly as a result of entering into these Ts & Cs, or as a result of the relationship constituted by these Ts & Cs or otherwise relating to the Service;
Delivery Date means the date on which the Goods are made available to the Customer at the Port
Documents mean the user instructions, manuals, and other documentation and all other related materials supplied to the Customer by Greener Events (if any) for aiding the Customer’s use of the Goods thereof;
Goods means the goods set out in the Order Confirmation;
Fault means a technical fault in the Goods which frustrates the Customer’s use of the Goods;
Fee means the purchase price for the Goods as specified in the Order Confirmation or the price for hiring the Goods as specified in the Order Confirmation
Intended Use means the use of the Goods for the purposes of providing to third party customers reusable drinking vessels; Port means the shipping port within Australia as nominated by the Customer and shown on the Order Confirmation
Special Conditions means the special conditions (if any) contained in the Schedule to the Order Confirmation
Order Confirmation means the Greener Events rental order confirmation by the Customer and in respect of which these Ts & Cs are deemed to be an integral contractual part;
2.1 The Order Confirmation is part of these Ts & Cs and is deemed incorporated by reference herein. In the event of any conflict between any provision of the Order Confirmation and any other provision of these Ts & Cs, the relevant provision of the Order Confirmation shall prevail.
2.2 The headings and sub-headings in these Ts & Cs are for convenience only and shall not affect the construction of these Ts & Cs.
3. EQUIPMENT
3.1 The Goods are as described on the Order Confirmation.
3.2 The Goods shall be made available to the Customer on the Delivery Date
4. FEE AND PAYMENT
4.1 At Greener Events’ sole discretion, the Fee shall be either:
(a) as indicated on the Order Confirmation or any other like forms including such invoices provided by Greener Events to the Customer in respect of Delivery Date of the Goods; or
(b) Greener Events ’s quoted price which shall be binding upon the Customer provided that the Customer shall accept in writing Greener Events ’s quotation within thirty (30) days.
4.2 Time for payment for the Goods shall be of the essence and will be stated on the Order Confirmation, invoice, quotation or any other order forms. If no time is stated then 40% of the Fee shall be payable on approval by the Customer of the Artwork (if any), 40% of the Fee at the confirmation of the Bill of Lading for the Goods and the remainder of the Fee, 3 days prior to the Delivery Date.
4.3 Payment shall be made by cash , or by bank cheque, or by credit card (plus any charges that maybe applicable), or by direct credit, or by any other method as may be agreed to between Greener Events and the Customer
4.4 The Fee shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly excluded in any quotation given by Greener Events to the Customer.
4.5 The Customer acknowledges that Greener Events shall be responsible for delivering the Goods to the shipping Port as designated by the Customer and agreed by Greener Events and as shown on the Order Confirmation. The Customer shall be responsible for any and all further costs in relation to transporting the Goods from the Port to the Customer’s premises.
5. DEFECTS/RETURNS
5.1 In the event that the Order Confirmation is for the purchase of the Goods, the Customer shall inspect the Goods on the Delivery Date and shall within seven (7) days of the Delivery Date notify Greener Events in writing of any alleged Fault, shortage in quantity, damage or failure to comply with the Order Confirmation. The Customer shall afford Greener Events an opportunity to inspect the Goods within a reasonable time following the Delivery Date if the Customer believes the Goods are defective in any way, provided the Goods have been utilised for its Intended Use. If the Customer fails to comply with these provisions, the Goods shall irrefutably presumed to be in accordance with the Order Confirmation and Specifications and free from any Fault, defect or damage.
5.2 In the event that the Order Confirmation is for the rental of Goods, the Customer shall inspect the Goods on the Delivery Date and shall within two (2) days of the Delivery Date and in any event prior to the use of the Goods by the Customer, notify Greener Events in writing of any alleged Fault, shortage in quantity, damage or failure to comply with the Order Confirmation. The Customer shall afford Greener Events an opportunity to inspect the Goods within a reasonable time following Delivery Date and in any event prior to the use of the Goods by the Customer if the Customer reasonably believes that the Goods are defective in any way, provided that the Goods have been utilised for its Intended Use. If the Customer fails to comply with these provisions, the Goods shall irrefutably presumed to be in accordance with the Order Confirmation and Specifications and free from any Fault, defect or damage
6. DEFAULT AND CONSEQUENCES OF DEFAULT
6.1 Any Fee or any other monies owing shall attract interest from the due date of invoice until payment at the rate of 2% per month on the outstanding balance.
6.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Greener Events from and against all Greener Events ’s legal costs and disbursements including on a solicitor and own client basis and in addition all of Greener Events ’s nominees costs of collection.
6.3 Without prejudice to any other remedies Greener Events may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Greener Events may suspend or terminate the supply of the Goods to the Customer and any of its other obligations under the terms and conditions. Greener Events will not be liable to the Customer for any loss or damage the Customer suffers because Greener Events exercised its right under this clause.
6.4 In the event that:
(a) any money payable to Greener Events becomes overdue, or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person as a trustee in bankruptcy is appointed in respect of the Customer or any asset of the Customer.
then without prejudice to the Greener Events’ other remedies at law:
(i) Greener Events shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to Greener Events shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 6.4 hereof.
(iii) Greener Events may attend at any premises of the Customer in order to
collect or seize the Goods
7. TITLE
7.1 In the event that the Order Confirmation specifies that the Customer is to purchase the Goods, it is the intention of Greener Events and agreed by the Customer that property in the Goods shall not pass until:
(a) The Customer has paid all amounts owing for the Goods, and
(b) The Customer has met all other obligations due by the Customer to Greener Events and that where practicable the Goods shall be kept separate until Greener Events has received payment in full and all other obligations have been met by the Customer.
7.2 Receipt by Greener Events of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until such time, Greener Events’ ownership of rights in respect of the Goods shall continue.
7.3 In the event that the Order Confirmation specifies that the Customer is to rent the Goods, it is the intention of Greener Events and agreed by the Customer that property in the Goods shall remain at all times with Greener Events.
7.4 It is further agreed that:
(a) Greener Events hereby charges the amount representing the unpaid balance due for full payment of the Goods or the rental of the Goods (whichever the case maybe) for the period until such time as full cleared payment for the Goods has been received from the Customer or in the event of rental, returned in good order by the Customer. Greener Events shall be permitted to register its interest (as defined by the Personal Property Securities Act (Cth)) in the Goods on the Personal Property Securities Register and the security interest shall be perfected as a result.
8. RENTAL OF GOODS
8.1 In the event that upon receipt of the Goods by Greener Events after the Agreed End Date, Greener Events shall inspect the Goods and shall within seven (7) days of the receipt of the Goods, notify the Customer in writing of any alleged Fault, shortage in quantity, damage or defect. The Customer shall be responsible for the reasonable costs as advised by Greener Events for the replacement or repair of the Goods.
8.2 On or before the Agreed End Date, the Customer shall cause the Goods to be delivered to the delivery location as advised by Greener Events (and inclusive of all charges for packaging, packing, shipping, insurance, carriage and delivery) in a clean ( unless the Order Confirmation specifically includes cleaning of the Goods,), empty and undamaged state (fair wear and tear excepted). Time for delivery shall be of the essence.
8.3 Unless otherwise stipulated by Greener Events in writing, deliveries of Goods will only be accepted in normal working or business hours. The Customer shall off load the Goods at the place and in the manner advised by Greener Events in clause 8.2.
8.4 All Goods shall be subject to Greener Events’ testing and inspection. Without prejudice to any rights that Greener Events may have (whether under this Agreement, under statute or anything else) in relation to the delivered Goods, Greener Events shall not be deemed to have accepted any Goods until after such testing and inspection have been completed to Greener Events’ satisfaction.
8.5 The Customer shall package, store and deliver the Goods in the form and manner stipulated in accordance with any instructions provided by Greener Events from time to time or if no instructions are provided, in accordance with those methods which would be reasonably expected to be sufficient to protect the Goods. The Customer shall securely package the Goods in the package of a type normally used by similar suppliers for the same or similar Goods.
8.6 If required by Greener Events, the Customer shall set out the following information on the outside of every package (where applicable for the relevant type of Goods):
8.6.1 Goods description;
8.6.2 quantity in package;
8.6.3 the Customer’s name and address.
9. ARTWORK
9.1 In the event that the Order Confirmation specifies that Artwork is to be included on the Goods, the Customer shall approve any Artwork in a timely manner. Any Artwork must be either provided to Greener Events by the Customer, or designed by Greener Events in consultation with the Customer.
9.2 In the event that the Customer provides Artwork to Greener Events,
9.2.1 the Customer may not make any amendment to the Artwork or the Goods after such time as receipt of the Artwork has been confirmed by Greener Events without the written consent of Greener Events.
9.2.2 The Customer must provide a high resolution file in a format as requested by Greener Events for use by Greener Events in relation to the Goods.
9.2.3 The Customer acknowledges that the Artwork does not infringe any copyright or intellectual property rights of any nature of any person anywhere in the world
9.2.4 Greener Events shall not accept any liability in relation to the use and quality of the Artwork as provided by the Customer.
9.3 In the event that the Order Confirmation specifies that Greener Events shall design the Artwork
9.3.1 Greener Events shall discuss and design the Customer’s Artwork requirements with the Customer and shall provide proofs to the Customer.
9.3.2 The Fee shall include two amendments to the Artwork, with any further amendments required by the Customer being charged to the Customer at a reasonable industry rate.
9.3.3 All documents, papers, reports, books, designs, registers, memoranda, manuals and records of any kind relating to the Artwork shall remain the sole absolute property of Greener Events
9.3.4 the Customer may not make any amendment to the Artwork or the Goods after such time as the Artwork has been approved by the Customer without the written consent of Greener Events.
10. CONFIDENTIALITY
10.1 The Customer undertakes to treat as confidential, and shall not use or disclose, any Confidential Information.
10.2 Confidential Information shall not include information that is generally available to the public at the time it is received by the Customer or thereafter becomes generally available to the public without breach of these Ts & Cs on the part of the Customer.
10.3 In case of discovery of any unauthorised disclosure or use of the Confidential Information, the Customer shall promptly inform Greener Events and take all appropriate measures to prevent further such unauthorised disclosure or use.
10.4 Greener Events reserves the right to include Customer’s name on its published list of customers to whom Greener Events is providing services unless the Customer advises in writing to the contrary.
10.5 This Clause 10 shall survive the termination or expiration of these Ts & Cs for a period of three (3) years, except that for any Confidential Information expressly designated by Greener Events in writing as a “trade secret”, such undertaking shall continue indefinitely for so long as such Confidential Information continues to remain a trade secret (or of equivalent status) under applicable law.
11. LIABILITY
11.1 Notwithstanding anything else contained in these Ts & Cs, so far as the law permits,
Greener Events shall not be liable to the Customer under or in connection with these Ts & Cs, whether for delay, negligence, breach of contract, misrepresentation or otherwise, for any incidental, indirect, consequential or special damages arising under or in connection with these Ts & Cs or the breach or failure to perform thereof.
11.2 All conditions and warranties expressed or implied by law, custom or otherwise are expressly excluded to the extent permitted by law;
11.3 Without prejudice to any of the foregoing paragraphs of this Clause 11, the entire liability of Greener Events under or in connection with these Ts & Cs, whether for negligence, breach of contract, misrepresentation or otherwise, is limited, with respect to each event or series of connected events, to an amount equal to the total amount of the Fees which have been paid by the Customer up to the point in time at which such liability first arose
11.4 Greener Events’ liability for any loss or damage suffered by the Customer as a result of the Greener Events ’s failure to comply with a guarantee as prescribed by the Competition and Consumer Act 2010 (Cth) (if applicable) is limited to either supplying of the Goods again or the cost of having the Goods supplied again.
11.5 Subject to the Competition and Consumer Act 2010 (Cth) (if applicable) and any other applicable legislation, Greener Events ’s liability for any loss or damage to revenue, profits, use, contracts, goodwill, or business and any consequential or indirect loss or damaged suffered by the Customer as a result of a breach of this Contract, is excluded.
11.6 Greener Events shall not accept any liability in relation to the supply or non-supply of the Goods as a result of the failure of any transport provider to deliver the Goods to the Port on the Delivery Date, subject to the Competition and Consumer Act 2010 (Cth) (if applicable) and any other applicable legislation
12. FORCE MAJEURE
12.1 If the punctual or complete performance of Greener Event’s obligations under these Ts & Cs is prevented or delayed by any cause beyond Greener Events’ reasonable control including any labour dispute (except where within the power of Greener Events), act of God, armed conflict, riot, civil commotion, malicious damage, accident, act of terrorism, explosion, epidemic, earthquake, fire, flood, storm or other severely adverse weather conditions, the Greener Events shall be excused from the punctual performance of the obligation affected during the continuation of the relevant event, and the time period required in order to perform such obligations shall be extended for a period reasonable under the circumstances. In case of a situation beyond Greener Events’ reasonable control, Greener Events shall promptly notify the Customer in writing and furnish it with all relevant information thereto. Greener Events shall promptly inform the Customer in writing of the cessation of the relevant event and resume complete performance of the obligation affected.
12.2 Should the situation beyond Greener Events’ reasonable control continue for more than thirty (30) days, Greener Events shall then have the right to terminate these Ts & Cs by written notice to the Customer.
13. GENERAL
13.1 These Ts & Cs shall be governed by and construed in accordance with the laws of South Australia.
13.2 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability, of the remaining of the provisions shall not be affected, prejudiced or impaired.
13.3 All Goods supplied by Greener Events are subject to the laws of South Australia and Greener Events takes no responsibility for changes in the law which affect the Goods supplied.
13.4 The courts of South Australia shall have exclusive jurisdiction to hear and decide any dispute, claim or matter arising out of or in connection with these Ts & Cs, or the existence, breach, termination or validity hereof, or the consequences of its nullity (each a “Dispute”). Each Party agrees that the courts of South Australia are the most appropriate and convenient courts to hear and decide any Dispute and agree to irrevocably submit to the jurisdiction of the courts of South Australia in relation to any Dispute.
13.5 The parties warrant and represent to each other that each of them has full power and authority to enter into and perform this Agreement and the entering into and performance of this Agreement does not contravene any contractual, legal or other obligations of them whatsoever.
13.6 If the Client is a company, the Client warrants that the Client is not subject to any actions as described in clause 6.4 (b) or (c).
13.7 The Client warrants that it will not sell or assign any interest in the Goods, or permit any charge, pledge, lien or other encumbrance to be created in relation to the Goods and will indemnify Greener Events in relation to any breach.
13.8 Greener Events does not give any warranty nor accept any liability in relation to the supply or non-supply of the Goods except to the extent, if any, required by law or specifically provided for in this Agreement. If apart from this Clause any warranty would be implied whether by law, custom or otherwise, that warranty is to the full extent permitted by law hereby excluded.
13.9 Nothing herein contained shall be read or applied so as to purport to exclude or have the effect of excluding the application in relation to the supply of any goods or services pursuant to this Agreement of all or any of the provisions of Competition and Consumer Act 2010 (Cth) (if applicable) or any relevant legislation which by law cannot be excluded, restricted or modified.
13.10 Greener Events may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
13.11 Greener Events reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which Greener Events notifies the Customer in writing of such change.
13.12 These Ts & Cs are to be read in conjunction with the Order Confirmation and Special Conditions (if any).