The Quote or Quotation Document and the delivery of services, or supply of goods by Jarlam Australia Pty Ltd (Jarlam) are governed by, and provided subject to, the terms and conditions as set forth below, or as amended from time to time in accordance with clause 53 (Conditions).
1. Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Victoria are open for business.
2. Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and Services in accordance with these Conditions.
3. Customer: the person or firm who purchases the Goods and/or Services from the Supplier as specified in the Quote or Quotation Document.
4. Force Majeure Event: an event or circumstances beyond a party’s reasonable control.
5. Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Jarlam and contained in the Quote or Quotation Document.
Basis of Contract
6. The Quote or Quotation Document constitutes an offer by the Customer to purchase the Goods and/or be supplied with the Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Quote or Quotation Document and any applicable Specification are complete and accurate.
7. The Quote or Quotation Document shall only be deemed to be accepted when Jarlam issues a written acceptance of the Quote or Quotation Document, at which point the Contract shall come into existence.
8. These Conditions apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
9. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
10. Any Quote or Quotation Document given by Jarlam shall not constitute an offer and is only valid for a period of 30 days from the date of issue by Jarlam, unless otherwise agreed by Jarlam in writing.
11. All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
12. The Goods are as described in the Quote or Quotation Document. Jarlam reserves the right to amend the Goods is required by any statutory or regulatory requirement and shall notify the Customer.
13. To the extent that any Goods are to be manufactured in accordance with specifications provided by the Customer to Jarlam, the Customer shall indemnify Jarlam against all liabilities, costs, expenses, damages and losses (including any indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Jarlam arising out of or in connection with any claim made against the Jarlam for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Jarlam’s use of the specifications provided by the Customer. This Clause 13 shall survive termination of the Contract.
14. On written request from the Customer, Jarlam shall deliver the Goods to the location set out in the Quote or Quotation Document or such other location as the parties may agree in writing (Delivery Location) at any time after Jarlam notifies the Customer that the Goods are ready. If the Customer does not request delivery, or there is no Delivery Address specified in the Quote or Quotation Document then the Customer will be solely responsible for taking delivery of the Goods.
15. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location or upon the Goods being made available to the Customer for collection where no Delivery Location is specified in the Quote or Quotation Document.
16. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Jarlam with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
17. If Jarlam fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Jarlam with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
18. Jarlam may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
19. Jarlam’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, the Customer is entitled:
a. to cancel this contract with Jarlam; and
b. to a refund for the unused portion, or to compensation for its reduced value.
The Customers is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, the Customer is entitled to have the failure rectified in a reasonable time. If this is not done, the Customer is entitled to a refund for the Goods and to cancel the contract for the Services and obtain a refund of any unused portion. The Customer is entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
Risk and Title
20. The risk in the Goods shall pass to the Customer on completion of delivery.
21. Title to the Goods shall not pass to the Customer Jarlam receives payment in full (in cash or cleared funds) for the Goods and any other goods that Jarlam has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
22. Until title to the Goods has passed to the Customer, the Customer shall:
a. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Jarlam’s property;
b. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
c. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Jarlam’s behalf from the date of delivery;
d. notify Jarlam immediately if it becomes subject to any of the events listed in clauses 36.b or 36.c; and
e. give Jarlam such information relating to the Goods as Jarlam may require from time to time.
Supply of Services
23. Jarlam will supply the Services to the Customer in accordance with the Quote or Quotation Document.
24. Jarlam shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quote or Quotation Document, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
25. Jarlam reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Jarlam shall notify the Customer in any such event.
26. Jarlam warrants to the Customer that the Services will be provided using reasonable care and skill.
27. All Intellectual Property Rights in or arising out of or in connection with the Goods and Services (other than pre-existing Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Jarlam. Jarlam grants to the Customer a limited revocable, non transferable, non sublicensable licence to use the Intellectual Property rights solely, and only as is necessary, for the purpose of receiving and using the Services and Goods in their business.
28. The Customer undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential and proprietary information of Jarlam concerning the trade secrets, marketing and technical information, employee information, financial and accounting information, customer and supplier lists, business, pricing information, technology, operating processes and procedures, affairs, customers, clients or suppliers of Jarlam, whether such information is marked as confidential or not except, as permitted by Clause 29.
29. The Customer may disclose Jarlam’s confidential information:
a. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 29 and has a confidentiality agreement in place on substantially the same terms; and
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
30. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
31. The Customer shall:
a. Ensure that the terms of the Quote or Quotation Document are complete or accurate;
b. Co-operate with Jarlam in all matters relating to the Services;
c. provide Jarlam, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
d. use its best endeavours to ensure that Jarlam’s employees, agents, consultants and subcontractors are provided with a healthy and safe working environment,
e. provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
f. prepare the Customer’s premises for the supply of the Services;
g. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
h. comply with all applicable laws, including health and safety laws;
i. keep all materials, equipment, documents and other property of Jarlam (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
j. comply with any additional obligations as set out in the Quote or Quotation Document
Charges and Payment
32. All fees and charges for the Goods and/or any Services shall be as set out in the Quote or Quotation Document and payable on the payment terms as specified in the Quote or Quotation Document. Where the Quote or Quotation Document does not specify the fees and charges for the Goods and/or Services, then fees will be incurred by the Customer on a ‘do and charge’ basis, in accordance with the fees and charges as set out in Jarlam’s then current Rate Sheet, based on the actual time taken by Jarlam to provide the Goods and/or Services.
33. All amounts set out in the Quote or Quotation Document are exclusive of GST.
34. Where there are no payment terms specified in the Quote or Quotation Document, all payments shall be due 30 days from the end of the month in which the Goods are supplied or the Services provided.
35. If the Customer fails to make a payment due to Jarlam under this Contract then in addition to its rights under Clause 36, the Customer shall pay interest on the overdue sum. Such interest will accrue each day at 1.5% per annum above the Reserve Bank of Australia’s overnight cash rate.
36. Jarlam and the Customer may only terminate this Contract on written notice to the other if:
a. the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
b. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
c. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business
37. Without affecting any other right or remedy available to it, Jarlam may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
38. On termination of the Contract:
a. the Customer shall immediately pay to Jarlam all of the Jarlam’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Jarlam shall submit an invoice, which shall be payable by the Customer immediately on receipt;
b. the Customer shall return all of Jarlam Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then Jarlam may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
39. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including
the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
40. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
Limitation of Liability
41. To the extent permitted by law, Jarlam shall not be liable for any indirect, incidental, special, consequential, punitive or special damages, including but not limited to loss of profit, loss of data, loss of revenue, loss of sales or business, loss of anticipated savings, loss of damage to goodwill and claims of third parties even if Jarlam has knowledge of the possibility of such damages.
42. Subject to clause , Jarlam’s total liability to the Customer shall not exceed the amounts actually received by Jarlam from the Customer in connection with this Contract.
43. Nothing in this Contract limits any liability which cannot be legally be limited including death or personal injury caused by negligence.
44. During the period from the commencement of Services described in the Quote or Quotation Document until twelve (12) months after the completion of the Services, the Customer must not solicit, headhunt or in any other proactive manner offer employment or any other type of engagement to Jarlam employees who have been associated with providing services under the Quote or Quotation Document without the prior written approval of Jarlam.
45. In the event that the Customer breaches clause 44 above, the Customer acknowledges and agrees that it will be liable to Jarlam for liquidated damages in an amount equal to such employees salary per annum at the time of the employee leaving Jarlam’s employ. The parties agree that this is a reasonable pre-estimate of Jarlam’s loss and not a penalty.
Advertising and Marketing
46. The Customer consents and agrees to the use of their name, logo’s and description of the Goods and/or Services provided to be included in and used on, marketing and promotional collateral produced by Jarlam.
47. Jarlam may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
48. No variation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
49. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
50. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
51. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
52. Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
53. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
54. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Victoria, Australia.
55. Each party irrevocably agrees that the courts of Victoria, Australia shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.