Terms of Goods and Service
1. Definitions and interpretation
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the services are principally being carried out or the goods provided.
Customer means the person identified on a quote or order as the customer
Goods means any goods supplied by the CWG including those supplied in the course of providing services.
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.
Loss includes, but is not limited to, costs (including party to party legal costs and the CWG’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Order means a purchase order for goods or services placed by a customer in response to a quote and as varied in writing from time to time by the parties.
PPS Law means: the Personal Property Securities Act 2009 (Cth) ( PPS Act ) and any regulation made at any time under the PPS Act (each as amended from time to time); and
any amendment made at any time to any other legislation as a consequence of a PPS Law.
Quote means a written description of the goods or services to be provided, an estimate of the CWG’s charges for the performance of the required work and anestimate of the time frame for the performance of the work.
Services means the services to be provided by the CWG to the customer in accordance with a quote and these terms of trade.
CWG means the entity specified as the Cobargo Wellness Group
(a) These terms of trade apply to all transactions between the customer and the CWG relating to the provision of goods and services. This includes all quotations, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the customer or elsewhere.
(b) The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
(c) The CWG may amend any details in a quote by notice in writing to the
customer. Such amended details supersede any relevant prior detail in dealings between the parties.
(a) The CWG may provide the customer with a quote. Any quote issued by the CWG is valid for 7 days from the date of issue.
(b) Unless otherwise expressly agreed in writing, a quote does not include delivery or installation of the Goods.
(c) Quotes are based upon the cost of materials available at the time of preparation of the quote and assume the timely supply by the customer of necessary material and instructions to the CWG.
(d) Following provision of a quote to the customer, the CWG is not obliged to commence work until the quote has been accepted by the customer. This occurs by the customer completing an order form and returning the form to the CWG.
(e) The CWG reserves the right to amend any quote before the order has been completed to take into account any rise or fall in the cost of completing the order. The CWG will notify the customer of any amendment as soon as practicable, at which point the amended quote will be the estimate or quote for the purposes of these terms of trade.
(f) An indication in a quote of the time frame for the provision of the goods or services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law (ACL), this estimate is not binding upon the CWG.
(a) Every order by the customer for the provision of goods or services must be submitted in writing on the CWG’s standard order form (unless otherwise agreed).
(b) An order will only be deemed to be placed by the customer if the order clearly identifies the goods or services ordered and the CWG’s Quote. Any costs incurred by the CWG in reliance on incorrect or inadequate information provided by the customer in an order may result in the imposition of an additional charge.
(c) Orders must be signed by an authorised representative of the customer and must specify the required date of delivery.
(d) Placement of an order by the customer signifies acceptance by the customer of these terms of trade and the most recent quote provided by the CWG relating to that order.
(e) The CWG may in its absolute discretion refuse to provide goods or services where:
(i) goods are unavailable for any reason whatsoever;
(ii) credit limits cannot be agreed upon or have been exceeded; or
(iii) payment for goods or services previously provided to the customer or any related corporation of the customer or to any other party who is, in the reasonable opinion of the CWG, associated with the customer under the same or another supply contract, has not been received by the CWG.
(f) An order cannot be cancelled without the prior written consent of the CWG. Where an order is cancelled, the customer indemnifies the CWG against any losses incurred by the CWG as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the order which is subsequently cancelled.
(a) The Customer may request that its order be varied by providing a request in writing to the CWG. A request for a variation must be agreed to in writing by the CWG in order to have effect.
(b) If the customer wishes to vary its requirements after a quote has been prepared by the CWG or after the placement of an order, the CWG reserves the right to vary the quote to include any additional charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised quote issued by the CWG in respect of the requested variation supersedes the original quote. If the revised quote only specifies additional work, the quote for that additional work will be in addition to the immediately preceding quote for the goods or services or both.
(c) The CWG has an automatic extension of time for the provision of the goods or services equal to the delay caused by the variation.
6. Invoicing and payment
(a) The CWG may in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
(i) prior to commencing the provision of the Goods or Services, for an amount equal to the Quote and Additional Charges where the CWG has not previously carried out work for the Customer or where the CWG chooses to do so;
(ii)at the end of each week before the Order is completed, the CWG may
issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at the CWG’s discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Goods or Services being provided; or
(iii) upon completion of the provision of the Goods or Services or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the CWG’s charge for the work performed in completing the Order and for any Additional Charges.
(b) The amount payable by the customer will be the amount set out in the quote. This will be calculated as:
(i) the amount for the goods or services (or both) as set out in the quote and any additional charges, or
(ii) where no quote has been provided by the CWG, the CWG’s usual charges for the goods or services (or both) as described in the order.
(c) The customer must pay an invoice issued by the CWG to the CWG within 7 days of a valid tax invoice being issued to the Customer.
(d) The customer and the CWG agree to comply with their obligations in relation to goods and services Tax (GST) under the A New Tax System (goods and
services Tax) Act 1999 and any other applicable legislation governing GST.
7. Acceptance of Goods
If the customer fails to advise the Cobargo Wellness Group in writing of any fault in goods or failure of goods within 48 hours of delivery, the customer is deemed to have accepted the goods and to have accepted that the goods are not faulty and in accord with the customer’s order. Nothing in this paragraph affects the customer’s rights for any alleged failure of a guarantee under the ACL.
8. Title and risk
(a) Risk in goods passes to the Customer immediately upon delivery.
(b) Property and title in goods supplied to the customer under these terms of trade does not pass to the customer until all money (including money owing in respect of other transactions between the CWG and the customer) due and payable to the CWG by the customer have been fully paid.
9. Intellectual Property Rights
(a) The Customer warrants that it owns all Intellectual Property Rights pertaining to its order for goods or services or has a licence to authorise the CWG to
reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the customer to the CWG for the purposes of the order. Further, the customer indemnifies and agrees to keep indemnified the CWG against all losses incurred by the CWG in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer.
(b) Unless specifically agreed in writing between the CWG and the customer, all Intellectual Property Rights in any works created by the CWG on behalf of the customer vest in and remain the property of the CWG.
(c) Subject to payment of all invoices due in respect of the goods or services, the CWG grants to the customer a perpetual, non-exclusive licence to use the works created or produced by the CWG in connection with the provision of goods or services under these terms of trade for the purposes contemplated by the order.
10. Default by Customer
(a) Each of the following occurrences constitutes an event of default:
(i) the customer breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 14 days of being given notice by the CWG to do so;
(ii) the customer, being a natural person, commits an act of bankruptcy;
(b) Where an event of default occurs, except where payment in full has been received by the CWG, the CWG may:
(i) terminate these terms of trade;
(ii) terminate any or all orders and credit arrangements (if any) with the customer;
(iii) refuse to deliver goods or provide further services;
(iv) retain (where applicable) all money paid by the customer on account of goods or services or otherwise.
(c) On the occurrence of an event of default all invoices will become immediately due and payable.
In addition to the express rights of termination provided in these terms of trade, a party may terminate these terms of trade by giving ….. days written notice to the other party.
13. Exclusions and limitation of liability
(a) The customer expressly agrees that use of the goods and services is at the customer’s risk. To the full extent allowed by law, the CWG liability for breach of any term implied into these terms of trade by any law is excluded.
(b) All information, specifications and samples provided by the CWG in relation to the goods or services are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations from them which do not
substantially affect the Customer’s use of the goods or services will not entitle the customer to reject the goods upon delivery, or to make any claim in respect of them.
(c) The CWG gives no warranty in relation to the services provided or supplied. Under no circumstances is the CWG liable or responsible in any way to the customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the goods or services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(i) any goods or services supplied to the customer;
(ii) any delay in supply of the goods or services; or
(iii) any failure to supply the goods or services.
(d) Any advice, recommendation, information, assistance or service given by the CWG in relation to goods or services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The CWG does not accept any liability or responsibility for any loss suffered as a result of the customer’s reliance on such advice, recommendation, information, assistance or service.
(e) To the fullest extent permissible at law, the CWG is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide goods or services, or otherwise arising out of the provision of goods or the services, whether based on terms of trade, negligence, strict liability or otherwise, even if the CWG has been advised of the possibility of damages.
(f) The customer acknowledges that the goods or services are not for personal, domestic or household purposes.
(g) The ACL may give to the customer certain guarantees, which cannot be restricted, limited or varied.
(a) The customer indemnifies and keeps indemnified the CWG, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the customer) against the CWG or, for which the CWG is liable, in connection with any loss arising from or incidental
to the provision of goods or services, any order or the subject matter of these terms of trade.
(b) This includes, but is not limited to, any legal costs incurred by the CWG in relation to meeting any claim or demand or any legal costs for which the CWG is liable in connection with any such claim or demand.
(c) This provision remains in force after the termination of these terms of trade.
15. Force majeure
(a) If circumstances beyond the CWG’s control prevent or hinder its provision of the goods or services, the CWG is free from any obligation to provide the goods or services while those circumstances continue. The CWG may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
(b) Circumstances beyond the CWG’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
16. Dispute resolution
(a) If a dispute arises between the customer and the CWG, the following procedure applies:
(i) A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
(ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
(iii) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
(b) If a dispute is notified, the representatives must endeavour to resolve the dispute as soon as possible and in any event within 7 business days
(c) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the
(a) These terms of trade are governed by the laws of the state or territory where the CWG’s registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state or territory.
(b) These terms of trade and any quotes and written variations agreed to in writing by the CWG represent the whole agreement between the parties relating to the subject matter of these terms.
(c) These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(d) If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(e) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
Australian Commercial Disputes Centre (ACDC)