When used in these Conditions the following words shall have the following meanings respectively assigned to each of them:
“Conditions” means these Gaffneys Standard Conditions of Sale.
“Contract” means the contract referred to in Clause 3.1.
“Customer” means a Person acquiring or offering to acquire Services of Gaffney and, where the Customer comprises more than one Person, the covenants and obligations of each Person are joint and several.
“Damage” includes either partial or total damage of any nature whatsoever to the Goods or any part thereof howsoever arising and includes without limiting the foregoing damage arising from any non-delivery, mis-delivery, late delivery or early delivery and any concealed damage, deterioration, contamination, evaporation and any consequential damage arising therefrom and further without limiting the foregoing includes partial or total damage of any nature whatsoever (including but not limited to such damage to any property, person or thing) howsoever arising that is suffered or incurred during or as a result of or which is in any way related to the provision of the Services.
“Dangerous Goods” means Goods that are or may become explosive, inflammable, radioactive or which otherwise are or may become capable of damaging any property of any nature and in any manner whatsoever and include without limiting the foregoing Hazardous Goods.
“Discretion” means an absolute and unfettered discretion and the exercise of Discretion may be unreasonable and arbitrary.
“Event” means any event, exhibition, fair or other function or thing at or in relation to which Gaffney supplies Services for or on behalf of the Customer.
“Gaffney” means Gaffneys Pty Ltd (ACN 600 044 620) (whether in its proprietary capacity or in its capacity as trustee of any trust) and all related corporations, successors and assigns.
“Goods” means the goods accepted by Gaffney from or on behalf of either the Customer or any other Person including but not limited to any Person who exhibits or is to exhibit Goods at any Event and includes without limitation all plant, machinery, chattels and goods and any container or other unit load device used to consolidate goods not supplied by or on behalf of Gaffney and includes where the context permits Dangerous Goods.
“Hazardous Goods” means Goods which are hazardous goods as defined from time to time by the Insurance Council of Australia Limited.
“Loss” includes any damage, injury, loss and/or any consequential loss of any nature whatsoever suffered by any Person arising from Damage, the Contract, the Conditions, the subject matter of the Contract and/or Conditions and/or the breach of any warranties and/or acknowledgements contained within the Conditions howsoever arising and includes damage, injury or loss arising from any nondelivery, misdelivery, late delivery or early delivery and includes without limiting the foregoing loss to any property or injury to any person.
“Owner” means the Owner of any Goods that are not owned by the Customer.
“Person” includes any individual, partnership, firm, company, corporation, government and semi-governmental bodies and instrumentalities.
“Services” means all services of any nature whatsoever provided or to be provided or required to be provided by Gaffney to the Customer or at the Customer’s request and includes without limiting the foregoing the carriage, transport, erection, dismantling, storage, packing, unpacking and moving of Goods and further without limiting the foregoing includes all logistics management and other services of any nature whatsoever provided or to be provided by Gaffney to the Customer and to any other Person including but not limited to any Person who exhibits or is to exhibit Goods at any Event.
APPLICATION OF CONDITIONS
Unless otherwise agreed in writing by Gaffney, these Conditions will apply to all quotations, orders and offers in relation to the Services and without limiting the foregoing to all Services supplied by or on behalf of Gaffney and will take precedence over trade custom, practice or course of dealing. In the event that Gaffney and the Customer wish to exclude, modify, vary, abrogate or suspend in whole or in part the operation of these Conditions, then such exclusion, modification, variation, abrogation or suspension shall only be valid and effectual in the event that the parties agree in writing to that effect and that such agreement specifically refers to these Conditions and to the fact that such agreement is intended to so exclude, modify, vary, abrogate or suspend these Conditions. To the extent of any inconsistency between any other agreement between Gaffney and the Customer (whether entered into prior to or after these Conditions govern the relationship between the parties), these Conditions shall prevail.
Save as otherwise agreed in writing between the Gaffney and the Customer and subject always to Clause 2.1, these Conditions contain the entire understanding and agreement between the parties with respect to the Contract and otherwise with respect to the Services and the Customer acknowledges and agrees as follows:
(1) That it has been provided with these Conditions prior to entering into the Contract.
(2) That, other than expressly set out in these Conditions, neither Gaffney nor any person acting on Gaffney’ behalf has made any representations or given any promise or undertaking upon which the Customer has relied.
(3) That the Conditions apply to the Contract and any other contract between Gaffney and the Customer and shall not be excluded, modified, varied, abrogated or suspended by reference to any alleged prior, subsequent or other agreement, representation or stipulation whether oral, written or implied except in accordance with Clause 2.1 and these Conditions shall supersede any other prior conditions published or issued by Gaffney and other terms inconsistent with the Conditions.
ORDERS AND CONTRACT
Each order by the Customer or request for Services is deemed to be an offer to Gaffney under these Conditions and is not binding on Gaffney prior to Gaffney’ acceptance of it but once accepted by Gaffney a contract will thereby be formed for the provision of Services on the terms and conditions set out in these Conditions (the “Contract”).
Gaffney may at its Discretion arrange or sub-contract for the Services or any part thereof to be performed by or with any other Person and such other Person shall be entitled to the benefits of these Conditions to the same extent as Gaffney and these Conditions shall apply mutatis mutandi for the benefit of any such other person.
QUOTATIONS AND PRICES
Prices quoted by Gaffney are firm unless otherwise agreed by Gaffney in writing.
Gaffney reserves the right to make any changes necessary to correct errors or allow for increases in the cost of labour, materials, freight, foreign exchange rates, taxes, duties or other levies as and when required.
Unless otherwise agreed in writing by Gaffney, the quoted price is exclusive of all taxes and duties, Insurance and transportation costs and charges of any kind, for which the Customer will also be liable.
Gaffney reserves the right to withdraw credit at any time and substitute cash with order or cash on delivery or any other terms.
Gaffney may refuse to proceed with any Contract at any time if the Customer’s credit is/or becomes unsatisfactory to Gaffney.
Gaffney’ catalogues, price lists and quotations do not constitute offers.
Any description of products or Services given by Gaffney is for identification purposes only and do not constitute a contract of sale by description.
Payment must be made to Gaffney by the Customer for the Services by the due date as stipulated in Gaffney invoice in Cash, Cheque, Electronic transfer or any other form acceptable to Gaffney, without any deductions or withholding and without any or any right to set-off or counterclaim.
Unless otherwise stated by the Customer, payments shall be deemed to discharge the Customer’s oldest debt and shall first reduce any costs or interest outstanding before reducing the principal debt.
If payment is not made by due date, Gaffney may, in addition to any other available remedy, charge interest on all overdue accounts at a rate two percent per annum higher than the rate prescribed from time to time under section 2 of the Penalty Interest Rates Act 1983 from the due date until the date payment is made in full.
Any expenses, costs or disbursements incurred by Gaffney in recovering any outstanding monies including debt collection agency fees and all legal costs and expenses (on a full indemnity or a solicitor and own client basis, whichever is the greater) shall be paid by the Customer and shall be recoverable from the Customer by Gaffney as a liquidated debt.
Unless otherwise agreed in writing, Gaffney is not and will not be deemed to be an insurer of the Goods.
Gaffney will not arrange insurance on behalf of the Customer or any Person over any Goods or other property or in any way related to the provision of the Services except upon express instructions in writing and then only at the expense of the Person so instructing and on lodgement of a declaration as to value where applicable.
The Customer warrants that the Goods are fit for the provision of the Services.
If the Goods are or include any Dangerous Goods or any Goods that are damaged then the Customer shall present a full description of such goods in writing to Gaffney prior to tendering such goods for provision of the Services and in any event the Customer shall be liable for any Damage and/or Loss arising in any way whatsoever out of the provision of the Services with respect to such goods howsoever arising and whether or not the Customer was aware of the nature of the goods and the Customer further warrants that except where the Goods are marked “Hazardous” the Goods are not and do not include any Hazardous Goods.
LIMITATION OF LIABILITY
In all circumstances and for all purposes and at all times the Goods shall be and shall remain at the sole risk of the Customer. Gaffney shall not be liable in any manner whatsoever for any Damage and/or Loss which may occur at any time and whether due or alleged to be due to misconduct, negligence, breach of contract, wilful act or default on the part of Gaffney its servants agents or contractors or otherwise and whether founded in tort, contract or otherwise.
If the Customer is not the Owner of any or all of the Goods the Customer shall for all purposes including and without limiting the foregoing for the purpose of entering into this Contract be deemed to be the agent of the Owner and any other Person interested in the Goods and the Customer warrants that the Customer has authority to so act as agent of the Owner and/or any such other Person.
Where the Owner enters into a contract arrangement or understanding with the Customer or any other Person for the Customer or that other Person to provide services with respect to the Goods (the “Head Contract”) and the Customer enters into this Contract with Gaffney for Gaffney to provide Services with respect to the Goods or any part thereof or the subject matter or any part thereof of the Head Contract the Customer shall accept liability for and will indemnify and keep indemnified Gaffney against any liability, claim, proceedings, losses, damages, costs and expenses which Gaffney may suffer or incur or which may be brought or claimed by the Owner or any other Person against Gaffney in respect of Loss and/or Damage as described in Clause 11.3.
The Loss and Damage referred to in Clause 11.2 shall include but not be limited to any Damage and/or Loss which may occur at any time whether due or alleged to be due to misconduct, negligence, breach of contract, wilful act or default on the part of Gaffney its servants agents or contractors or otherwise and whether founded in tort, contract or otherwise.
INSOLVENCY AND DEFAULT
Gaffney may, by notice in writing to Customer, suspend or terminate any Contract with the Customer (so far as unperformed) forthwith if the Customer(s):
(1) Commits any breach of these Conditions, the Contract or any other contract with Gaffney;
(2) Compounds with or negotiates for any composition with its creditors generally;
(3) Being an individual, the dies, becomes permanently incapacitated, or has a trustee appointed or receiving order made against him or commits any act of insolvency;
(4) Being a corporate body or legal persona, calls any meeting of its creditors or has a liquidator, provisional liquidator, official manager, mortgagee, mortgagee’s agent, receiver or administrator of all or any of its assets appointed or enters into any liquidation (other than solely for reconstruction or amalgamation while solvent) or commits any other act of insolvency;
(5) Financial position, or some other facts or circumstances, leads Gaffney to believe on reasonable grounds that the Customer is likely to materially fail to complete its obligation under these Conditions, the Contract or any other contract with Gaffney.
(1) Will be entitled by notice in writing to the Customer to declare immediately due and payable any amount outstanding from the Customer to Gaffney under these Conditions, this Contract or any other contract(s) (such sums thereby becoming forthwith due and payable);
(2) Will be entitled to require payment of cash in advance and will be entitled to payment for any service already provided or being provided under this these Conditions, this Contract or any other contract at the rate agreed by Gaffney or specified in the contract or if none is specified, at a reasonable rate; and
(3) May claim damages from the Customer.
This Clause 12 does not limit any other remedy that may be available to Gaffney including without limitation compensation for any loss or damage suffered by it.
Any dispute or differences arising in connection with these Conditions and/or the Contract must be submitted to arbitration in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitrations.
Notwithstanding Clause 13.1, Gaffney and the Customer agree that before resort is made to arbitration or any court they will each make a genuine effort to resolve any dispute by a face to face meeting convened by Gaffney at a convenient time and place, between senior management, and failure to do so is agreed to justify a court awarding costs against the party who has failed to make such a genuine effort.
Any failure by Gaffney to insist on strict compliance with these Conditions or any delay by Gaffney in exercising its remedies under these Conditions or otherwise will not constitute a variation or waiver of any provision of these Conditions or of any remedy available to Gaffney.
These Conditions will be governed by and construed in accordance with the laws of the State of Victoria, Australia, and the Customer hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria including all Courts of Appeal.
Notwithstanding anything to the contrary contained in these Conditions, Gaffney is and continues to be subject to any conditions and warranties implied by virtue of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1999 (Vic) to the extent that such conditions and warranties apply to these Conditions and to the Contract and then only to the extent that they cannot lawfully be excluded and is and continues to be subject to all legislation, regulations, rules and requirements of law to the extent that they apply and then only to the extent that they cannot lawfully be excluded.
The parties acknowledge and agree that all provisions of these Conditions are reasonable in the circumstances and that if any provision be held unenforceable or in conflict with the laws of a relevant jurisdiction it shall be read down to the minimum extent necessary to render it enforceable and valid and, if incapable of being read down, it will be severed from the remainder of these Conditions which shall not be affected by such severance.
In the interpretation of this Agreement: a) words importing the singular shall (where appropriate) mean and include the plural and vice versa; b) words importing any one gender shall (where appropriate) mean and include the other gender and vice versa; c) words importing a natural person shall (where appropriate) mean and include corporations and vice versa; d) where a word or phrase is defined, its other grammatical forms have a corresponding meaning; e) headings are for convenience or reference only and shall not be construed as affecting the meaning or interpretation of this Agreement; f) this Agreement shall not be interpreted to the disadvantage of Gaffney merely because it was prepared by Gaffney or by its legal advisors; and, f) notwithstanding anything to the contrary that may be contained in this Agreement Gaffney is and continues to be subject to any conditions and warranties implied by virtue of the Trade Practices Act 1974 (Cth) (as amended) and the Fair Trading Act 1999 (Vic) (as amended) (and any fair trading or like legislation in other States and Territories) to the extent that such conditions and warranties apply to these Conditions and to the Contract and then only to the extent that they cannot lawfully be excluded and is and continues to be subject to all legislation, regulations, rules and requirements of law to the extent that they apply and then only to the extent that they cannot lawfully be excluded.