[Only applicable when no master agreement or contract exists between Electrical Testing Services and the Customer]
Agreement: the agreement between the Customer and Electrical Testing Services, which is constituted by:
a) These terms and conditions; and
b) The Quotation.
Customer: the person or persons named as "Customer" in the Quotation.
Equipment: the plant or equipment of the Customer described in the Quotation as well as each or any replacement or substitute thereof and all parts and components thereof.
Fees: the fees specified in the Quotation.
PPSA: the Personal Property Securities Act 2009 (CT).
Premises: those premises described as the Service Address in the Quotation, being the location of the Equipment.
Products: the equipment and materials to be supplied by Electrical Testing Services to the Customer, the details of which are specified in the Quotation (if any).
Quotation: the quotation for provision of services and/or supply of products which accompanies these terms and conditions.
Service Date: the date specified as Service Date in the Quotation, or if one specified, the date on which the Services are provided and/or the Products are supplied (as applicable) by Electrical Testing Services.
Services: any or all of the inspection, testing, repairs, installation, or advisory services pertaining to the Equipment, the details of which are specified in the Quotation (if any).
Electrical Testing Services: Electrical Testing Services Pty Ltd.
ABN 26 102 233 189
Electrical Testing Services agrees to supply the Products and provide the Services in respect of the Equipment to the Customer on the Service Date (or such other date as maybe agreed) - on the terms set out in this Agreement.
a) The Customer shall pay to Electrical Testing Services the Fees for the Products and Services in accordance with the Quotation.
b) The Customer shall pay all taxes, charges, and fees imposed by any carrier or government or regulatory body which are properly payable in connection with the supply of the Products and Services.
c) Electrical Testing Services reserves the right to recover from the Customer all goods and services tax levied on the supply of any goods and services (including the Services and Products) under this Agreement.
d) Electrical Testing Services reserves the right to increase our fees in line with the Consumer Price Index (CPI) on the 1st of July every year, or at our discretion.
The Customer must:
a) Maintain all other items, which may affect the testing, maintenance, or operation of the Equipment;
b) Provide such other assistance or permit such other access as Electrical Testing Services may reasonably require for the proper provision of the Products and Services; and
c) Comply with all operating and maintenance instructions in relation to the Equipment.
To the fullest extent permitted by law, Electrical Testing Services exclude all warranties and representations in respect of the supply to the Customer of the Products and Service. Where any of the consumer guarantees under the Competition and Consumer Act 2010 (the CCA) apply to any Products or Services supplied by Electrical Testing Services to the Customer, and the CCA voids or prohibits provisions in a contract excluding, restricting, or modifying such consumer guarantees, then, to the fullest extent permitted by law, the liability of Electrical Testing Services under or arising out of the supply of goods and services for breach of, or failure to comply with, any such consumer guarantees shall be limited, at the option of Electrical Testing Services, to:
a) If the breach or liability relates to goods:
I. the replacement of the goods or the supply of equivalent goods;
II. The repair of the goods;
III. The payment of the cost of replacing the goods or of acquiring equivalent goods; or
IV. The payment of the cost of having the goods repaired;
b) If the breach or liability relates to services:
I. the supplying of the services again; or
II. The payment of the cost of having the services supplied again.
Except to the extent that the law, including the CCA, provides that liability is not able to be excluded, Electrical Testing Services shall not be under any liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage or loss of profits, loss of use or loss of data), however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the Products or Services, supplied by Electrical Testing Services or the failure of Electrical Testing Services to comply with these terms and conditions.
c) If for any reason Electrical Testing Services is prevented from performing any part of the Services through lack of access to where the Equipment is located, the Customer must compensate Electrical Testing Services for revenue loss and any out-of-pocket expenses incurred and Electrical Testing Services will not have any liability to the Customer by reason of its inability to perform those Services.
Electrical Testing Services has Public Liability insurance and will provide evidence of such insurance upon request by the Customer.
To the extent permitted by law and except as otherwise provided herein, all conditions, warranties, and representations are expressly negated and excluded.
I. Electrical Testing Services may assign, novate, or subcontract its rights and/or obligations under this Agreement without the consent of the Customer.
II. The Customer has no right of assignment without Electrical Testing Services consent, which consent shall not be unreasonably withheld.
The special conditions contained or referred to in the Quotation (if any) shall form part of this Agreement.
These terms and conditions will apply to the exclusion of all other terms and conditions contained in the Customer's order. In the event of any inconsistency, Electrical Testing Services will be deemed, by supplying the Products and Services to the Customer, to have made an offer to the Customer to sell the Products and Services pursuant to these terms and conditions, which offer will be deemed to have been accepted if the Customer retains the Products or accepts the Services. Electrical Testing Services reserves the right to change these terms and conditions at any time by notice to the Customer.
a) Risk in any Products will pass to the Customer on delivery.
b) Notwithstanding paragraph (a), Electrical Testing Services will retain ownership of the Products until it has received payment in full for the Products and for all Services supplied by Electrical Testing Services to the Customer.
c) The Customer must insure the Products against all usual risks to full replacement value until ownership passes to the Customer. Any insurance monies received by the Customer in respect of the Products owned by Electrical Testing Services shall be held on trust for Electrical Testing Services.
d) Where the Products are processed or commingled into other property, Electrical Testing Services takes title to that other property as well.
e) Where the Customer disposes of the Products before payment of the full Fees to Electrical Testing Services, the sale proceeds of such disposal are the property of Electrical Testing Services, and the Customer holds the proceeds on trust for Electrical Testing Services. Further, the Customer, in disposing of the Products before payment to Electrical Testing Services, does so as Electrical Testing Services' fiduciary agent.
f) In the event that the Customer fails to make payment within the due time as stipulated by Electrical Testing Services, without prejudice to Electrical Testing Services' other remedies, Electrical Testing Services has the right to enter the premises of the Customer and to regain possession of the said Products, and the Customer waives the right to receive any notice under the Personal Property Securities Act (PPSA).
a) The Customer acknowledges and agrees that this Agreement creates a Security Agreement for the purposes of the Personal Property Securities Act (PPSA) and that Electrical Testing Services may register its Security Interest in the Products and in the proceeds of sale of the Products as a Purchase Money Security Interest on the Register.
b) The Customer undertakes to promptly sign any further documents and to provide any further information (such information to be completed, accurate, and up-to-date in all respects) which Electrical Testing Services may require to make relevant registrations on the Register.
c) Where the PPSA applies to action taken by Electrical Testing Services in relation to the Products, the Customer:
I. agrees that sections 120, 125, 142, and 143 of the PPSA will not apply; and
II. Waives its rights to receive any notices under sections 95, 118(1)(b), 121(4), 123(2), 130, 132(3)(d), 132(4), and 135 of the PPSA, and any rights to receive a Verification Statement under the PPSA.
d) Capitalized terms used in this paragraph have the meanings given to them in the PPSA.
a) No waiver by Electrical Testing Services of any default or breach or the non-acceptance by Electrical Testing Services of any repudiation of this Agreement by the Customer shall affect the rights of Electrical Testing Services in respect of any further or continuing default or breach or any subsequent repudiation by the Customer.
b) This Agreement shall be binding on the heirs, successors, and permitted assigns of the parties hereto.
c) In the event that any provision (or part thereof) contained in this Agreement is rendered void, invalid, or unenforceable in any jurisdiction then such provision (or part thereof) shall be severed from this Agreement without affecting the validity of the provision in any other jurisdiction or the remaining provisions in that jurisdiction.
d) Where there is more than one Customer, then the liability of each shall be Joint and Several.
e) In this Agreement:
I. the singular includes the plural and vice versa;
II. Any gender includes any other gender; and
III. A reference to a person includes a corporation or any other legal entity and vice versa.
f) No forbearance, delay, or indulgence by a party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that party.
g) This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and contains all of the representations, undertakings, warranties, covenants, and agreements of the parties.
h) This Agreement shall be governed by and construed in accordance with the laws of the State or Territory in which the Premises are located.
i) Any amendment to this Agreement must be in writing and signed by both parties.