1.1 In this document, the following expressions will have the meanings assigned below:
1.2 These terms apply to orders for Products made by the Customer with Air Tarps
and any supplies of Products made by Air Tarps to the Customer and supersede any previously agreed terms. Air Tarps may from time to time amend these terms, by publishing amended terms on its website, in which case any supply made pursuant to an order made after such amended terms are published will be subject to the amended terms.
1.3 No failure to exercise delay in exercising any rights under these terms will constitute a waiver of those right.
1.4 The agreement between the parties will be governed by the law of New South Wales and subject to the jurisdiction of that state
2.Delivery and Instillation
2.1 Air Tarps will deliver or install the Products or make them available for collection,
as specified in the relevant order. Delivery or collection of the Products will occur during normal working hours and delivery will be made to the address specified by the Customer. Installation will occur at a time specified by Air Tarps
2.2 Air Tarps will make reasonable efforts to arrange delivery of the Products by any estimated delivery date, but Air Tarps will not be liable for any delay due to Force Majeure. If, due to Force Majeure, Air Tarps cannot practically arrange delivery of the Products by the estimated date, Air Tarps may, in its sole discretion, without liability to the Customer, either extend the time for delivery for a reasonable period or terminate the agreement to supply the Products, to the extent to which the Products have not already been supplied, with the Customer remaining liable to pay for Products already supplied.
2.3 The Customer is responsible for and must reimburse to Air Tarps on demand, without set off, all freight and insurance costs relating to delivery of the Products to the Customer.
2.4 Delivery of the Products to Air Tarps carrier or to any carrier or other third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
2.5 Air Tarps may, in respect of orders for quantities of the Products, make partial deliveries as Products are completed and invoice for such partial deliveries as if they were separate orders.
2.6 The Customer must inspect the Products on delivery and must within seven days of
delivery notify Air Tarps of any alleged defect, shortage in quantity, damage or failure
to comply with the description or quote. The Customer must afford Air Tarps an opportunity to inspect the Products within a reasonable time following delivery if the
Customer claims the Products are defective in any way and if the Customer fails to comply with these provisions, the Products shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
2.7 The Customer is not entitled to cancel an order after acceptance by Air Tarps. Air Tarps may, in its discretion and without obligation to do so, accept cancellation of an order or return of the Products, in which case Air Tarps may forfeit any deposit paid by the Customer and the Customer must pay to Air Tarps, to the extent it
exceeds any deposit, such portion of the agreed price for the relevant Products as
3.1 The price payable for the Products ("the Price") shall be the price agreed between Air Tarps and the Customer or failing agreement, Air Tarps usual charge for comparable goods.
3.2 Air Tarps may impose additional charges for variations and/or additions
requested by the Customer as compared with Air Tarps' quotation. Such additional charge will be calculated in accordance with clause 3.1 and paid at the time of payment of the Price.
3.3 Unless otherwise agreed, the Customer must pay the Price, by means approved by Air Tarps, on or before delivery, installation or collection of the Products or .The
Customer is not entitled to set off against any monies owed to Air Tarps any moneys owed or claimed to be owed by Air Tarps to the Customer.
3.4 Unless otherwise agreed, the Price and any other amounts due to Air Tarps are exclusive of GST and the Customer must also pay to Air Tarps an amount equal to any GST payable by Air Tarps in respect of any taxable supply under the GST Law made by Air Tarps to the Customer.
3.5 The Customer must pay interest on any unpaid amount at the rate charged by Air Tarps bank on an overdraft of the same amount plus 4% from the due date for payment to the date of payment.
3.6 Air Tarps may, without liability to the Customer, suspend work on or delivery of the Products if the Customer fails to pay any amount due to Air Tarps (whether in respect of the Products or otherwise) by the due date or if Air Tarps reasonable grounds believes that the Customer is or may become bankrupt or subject of an order for winding up or receivership or administration or otherwise unable to pay any amounts which are or may become due to Air Tarps.
3.7 The Customer must indemnify Air Tarps in respect of any costs, expenses or liabilities incurred by Air Tarps arising from failure by the Customer to pay any
amount by the due date including legal costs and expenses on a solicitor and own
client basis with respect to any proceedings or other action to recover the amount due, including action under clause 5.3.
4.1 The Customer must install, use and maintain the Products in accordance with Air Tarps' manuals and guidelines, applicable laws and with due care and must
Indemnify Air Tarps in relation to any third party claims against Air Tarps arising from any contrary or neglect instillation, use or maintenance of the product by the customer.
5.1 Risk in the Products passes to the customer on delivery of the products to the customer.
5.2 Notwithstanding clause 5.1, title and property in the Products and any other goods supplied by Air Tarps to the Customer will not pass to the Customer unless and until the Customer has paid all moneys due to Air Tarps by the Customer, not limited to the Price for the Products. Until title to any Products passes:
5.3 The parties acknowledge and agree that:
They contract out of sections 95, 96,125,129,130,132(4), 135,142 &143 of the PPSA to the extent that they require Air Tarps to give any notice, allow time or grant any opportunity to remedy to the customer.
6.1 Nothing in this clause 6 is intended to or will be construed so as to have the effect of contracting out of or excluding, restricting or modifying any applicable provisions of the Commonwealth CCA or ACL, except to the extent permitted by the CCA or ACL. For the avoidance of doubt, the limited warranty provided for in these terms is in addition to, rather than in substitution for, any such rights.
6.2 The Customer acknowledges and agrees that, in acquiring the Goods, the Customer is relying solely upon his own skill and judgment and not on any agreement, representation or undertaking by Powertarps not reduced to writing and attached to the relevant order.
6.3 Subject to clause 6.1, the Customer acknowledges and agrees that Air Tarps’ liability, whether in contract, tort or otherwise, is limited to the extent permitted by law to the standard limited warranty given by Air Tarps in respect of its products, a copy of which the Customer acknowledges was provided to the Customer with Air Tarps'
quotation and the Customer releases Air Tarps from any liability to the extent it exceeds that provided for in such warranty. Without limiting the generality of that provision, Pow7ffa'rps' liability to the Customer will not exceed refund or repair or replacement or payment of the reasonable cost of having the Products replaced (if goods) or refund or resupply or the reasonable cost of having the services resupplied (if services) and Air Tarps will have no liability for loss of profits or other consequential loss.
6.4 The Customer releases Air Tarps from any liability, including loss of profits or other consequential loss, arising from any of the following circumstances:
7.1 Air Tarps retains all intellectual property rights in relation to the Products,
Including patent rights, design rights copy rights and trademarks, whether or not registered
and the customer must not infringe on those rights or produce or supply products similar in function or appearance to the Products.
7.2 The Customer must not remove any Trademarks from the products, supply Products to third parties without attribution of the products as Products of Air Tarps or incorporate the Products in third party products without Air Tarps' prior written consent.
7.3 The Customer consents to Air Tarps' use of images of the Products and any vehicles on which they have been installed in Air Tarps' promotional materials and advertising.
The parties acknowledge and agree that any personal information relating to
Air Tarps Limited Warranty