Rev 2 – Mar 2015
1.1 This agreement consists of these standard terms and conditions and the quote that Alpha provides You which accompany these terms and conditions (Agreement). By accepting the Supply Items (as defined in clause 2.1) You agree and are deemed to be bound by this Agreement.
1.2 For the purposes of this Agreement, Alpha means Alpha Rigging Service Pty Ltd (ABN 60 094 680 136) and You means the company or person that requires, and Alpha has agreed to supply, the Supply Items.
1.3 If there is any inconsistency between this Agreement and any other written agreement, this Agreement prevails to the extent of the inconsistency.
2.1 Alpha will supply, provide or perform (as relevant) the Supply Items to You at the location agreed between Alpha
and You. The Supply Items may include one or more of the following:
(a) goods, materials, tools, plant, equipment and consumable items either on consignment, for purchase or in conjunction with the provision of Services (Equipment), where such equipment may be manufactured by Alpha for You (Manufactured Equipment) or sourced by Alpha from a third party and on-sold to You (Sourced Equipment);
(b) employees, servants, agents and subcontractors engaged by Alpha for the performance of Services (Personnel); and
(c) services, including where necessary the provision of Equipment and/or Personnel charged either on a day rate or as a lump sum fee for the services (Services).
2.2 The Supply Items which are the subject of this Agreement and the price of each Supply Item to be supplied, provided or performed (as relevant) are set out in the quote that forms part of this Agreement.
3. Order number
Both parties must quote the Supply Items number (if relevant), the Supply Items, billing address and full name of Your contact person on all invoices, delivery slips and correspondence pertaining to the Supply Items.
4. Performance, Quality and Approval
4.1 Alpha will perform all Services:
(a) efficiently, diligently and with due care and skill; and
(b) in accordance with all statutory requirements, codes of practice and the highest professional and ethical standards customary in the relevant industry.
4.2 Manufactured Equipment will be unencumbered, of merchantable quality, fit for the required purpose and free from defects arising from faulty or defective materials, workmanship or design.
4.3 Equipment on consignment or for purchase will be new unless You agree otherwise.
4.4 Alpha warrants that, in relation to any Equipment to be sold to You pursuant to this Agreement Alpha has the
right to sell such Equipment.
4.5 Except for the warranty given in clause 4.4 of this Agreement, Alpha does not provide any warranties in
relation to Sourced Equipment. Any and all risk in such Sourced Equipment is borne solely by You.
4.6 Personnel performing Services for You will be sufficiently qualified and licensed.
5.1 Unless the parties agree otherwise, within 30 days of the:
(a) supply of Equipment for immediate purchase or purchase on consignment; or
(b) completion of the Services in accordance with this Agreement, Alpha will send a Tax Invoice (as defined in clause 8) to You. You must pay the amount of the Tax Invoice in Australian dollars within 30 days after the date a Tax Invoice is received.
5.2 Subject to clause 8.1, Alpha will be solely liable for payment of all applicable taxes, imposts, levies,
withholdings or duties of any nature (including excise and import duties).
5.3 If You dispute any Tax Invoice, You must notify Alpha of the dispute and You will only be obliged to pay the
undisputed portion of that Tax Invoice.
6. Title and/or Risk
6.1 Subject to clauses 6.2 and 6.3, unencumbered title to, and risk in, any Equipment purchased by You will pass to You:
(a) where the Equipment is to be physically affixed to the ground, immediately prior to the affixation;
(b) where the Equipment is supplied on consignment, subject to clause 6.2, at the time and place where such Equipment is first used by You; and
(c) in all other circumstances, on acceptance by You at the time and place of supply nominated by You.
6.2 Risk in Equipment supplied to You on consignment will pass at the time and place of supply to You.
6.3 You may reject or return to Alpha any Equipment that does not comply with this Agreement, at Alpha’s expense. Title and risk in such rejected Equipment will remain with Alpha and You may require Alpha to supply replacement Equipment that meets the requirements of this Agreement.
7.1 Alpha will supply, provide or perform (as relevant) the Supply Items on or by the delivery or due date agreed between Alpha and You (Delivery Date).
7.2 All Equipment will be suitably packaged and transported in a manner which will prevent damage.
7.3 Alpha will promptly inform You of any anticipated or actual delays.
7.4 In respect of the provision of Supply Items Alpha will ensure that the Personnel:
(a) supply, provide or perform (as relevant) the Supply Items in an efficient and safe manner;
(b) pay appropriate regard to the protection of the environment; and
(c) observe and adhere to any direction in relation to health, safety or environment matters made by You. Equipment must be marked or labelled to ensure safe handling.
8.1 The fees and charges specified in this Agreement do not include GST. The Supplier will add the prevailing rate of GST onto all Taxable Supplies made in connection with this Agreement, and the Recipient agrees to pay that GST following receipt of a Tax Invoice from the Supplier. The GST applicable to any Taxable Supplies made in connection with this Agreement is payable at the same time as the Consideration for those Supplies.
8.2 Where a party reimburses the other party for an expense or other amount incurred in connection with any wholly or partly Creditable Acquisition or any wholly or partly Creditable Importation made by that other party, the amount reimbursed will be net of any Input Tax Credit claimable in respect of that acquisition or importation (as the case may be).
8.3 If You are required, in Your opinion, to withhold any amount in respect of tax from a payment to be made to Alpha under this Agreement, You are entitled to do so, and such withholding and payment to the relevant taxing authority will be a good discharge of Your obligation to pay the relevant amount to Alpha. In the event that You pay an amount to Alpha without withholding an amount in respect of tax, You will be indemnified by Alpha for any loss You suffer as a result of failing to withhold.
8.4 Terms in capitals in this clause and in relation to “Tax Invoice”, throughout this Agreement, unless otherwise defined, have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.
9. Exclusion of Warranties and Liability
9.1 Alpha does not make any representations or warranties to You in connection with any Supply Items, except for those warranties expressly set out in this Agreement and those warranties which cannot by law be excluded from this Agreement.
9.2 To the extent permitted by law, Alpha’s liability for breach of any express or implied condition or warranty is limited to the replacement or repair of the Manufactured Equipment (but not the Sourced Equipment) or reperformance of the Services in accordance with clause 9.3 of this Agreement.
9.3 Subject to clause 9.4, Alpha will, at its expense, remedy any defects in the Supply Items which arise within 30 days of the Delivery Date (Warranty Period). If any defect which Alpha is obliged to remedy pursuant to this clause is not remedied within a reasonable time, or circumstances render it impracticable or unreasonable for Alpha to remedy the defect, You may remedy the defect Yourself or engage a third party to remedy the defect and Alpha will reimburse You for the reasonable costs You incur in doing so. Your remedies in this clause are in addition to Your other rights and remedies existing under this Agreement or at law.
9.4 Clause 9.3 does not apply to Sourced Equipment. To the extent permitted by law, except in relation to a breach of the warranty in clause 4.4, Alpha has no liability to You in respect or, or in connection with, the Sourced Equipment.
9.5 To the extent permitted by law, notwithstanding any other provision of this Agreement, Alpha is not liable to You for any special, indirect or consequential losses or damages or loss of anticipated profit in connection with this Agreement (howsoever caused) You may incur as a direct or indirect result of Alpha’s actions in connection with this Agreement.
10.1 You agree to indemnify and keep Alpha indemnified from and against any claim, action, proceeding, damage, loss (including special, indirect or consequential loss), liability, cost or expense (including legal costs) howsoever arising including by negligence or breach of duty (statutory or otherwise) which may be incurred by or brought, made or recovered against Alpha as a result of, or in connection with (without limitation):
(a) personal injury, illness or death of the Personnel or any person, to the extent that the personal injury, illness or death of the Personnel is caused by or results from the act or omission, negligence or fault of You or Your personnel, employees, agents, contractors and subcontractors (Your Personnel);
(b) loss of or damage to any goods, materials, tools, plant, equipment property or consumable items to the extent the loss or damage is caused by or results from the act or omission, negligence or fault of You or Your Personnel; and
(e) Your breach of this Agreement.
11. Term and Termination
11.1 Where the Supply Items are provided on:
(a) a once-off basis, this Agreement continues until the Supply Items have been provided and paid for; and
(b) an ongoing basis, this Agreement continues for the term agreed by the parties, or if no term has been agreed, on a month to month basis until either party terminates the Agreement by giving the other party one months’ notice.
11.2 Alpha may by written notice to You immediately terminate this Agreement at its convenience for any reason and without any liability. All rights a party accrued before expiry or termination continue.
12. Governing and Applicable Law
This Agreement is governed by the laws of the Australian State or Territory in which the Supply Items are supplied, provided or performed (as relevant). The parties submit to the exclusive jurisdiction of the courts of that place.
13. Use of Trade marks
13.1 You must not, without the prior written consent of Alpha, use the name or any trade name or registered trade mark of Alpha in any advertising or communications to the public in any format.
14.1 Alpha may assign all or any of its rights, or transfer all or any of its obligations, under this Agreement or enter into any subcontract in respect of this Agreement, without obtaining Your prior written consent.
14.2 The parties agree to exclude the operation of any legislation in the jurisdiction referred to in clause 12 which adapts the United International Sale of Goods.
14.3 You must keep the provisions of this Agreement and any information provided to you by Alpha under this Agreement confidential.
14.4 Alpha will provide the Supply Items to You as an independent contractor.
15.1 Alpha shall be responsible for the management of all information obtained or created during the performance of inspection activities. Alpha shall inform You, in advance, of any information it intends to place in the public domain. Except for information that You make publicly available, or when agreed between Alpha and You, all other information is considered proprietary information and shall be regarded as confidential.
15.2 Information received about You from sources, other than the yourself, shall be treated as confidential.