These Standard Terms apply to purchase orders issued by 11 Stars Groups and Ventures (hereinafter referred to as “Business”) to our customers/clients (hereinafter referred to as “Purchaser”).
1.1 Prices and terms are subject to alteration without notice and unless otherwise specified are exclusive of GST and any GST payable must be paid by the Purchaser to the Business in the same manner and at the same time as the consideration for the supply is required to be paid by the Purchaser under these Terms.
1.2 This Agreement commences on the date the Purchaser accepts the Quotation in writing, which is then sent as an Invoice. Where you accept our Invoice, there is a contract on this basis. Any terms and conditions in your quote, offer document, Order acceptance or any other document you
supply are excluded.
2.1 These Terms, the Quotation, invoice, or the Rates Schedule, and any other written instruction or authority provided by the Business to proceed constitutes the entire agreement between the Purchaser and the Company, and:
a. Subject to clause 2.1 (b), the Agreement supersedes all prior or contemporaneous oral or written communications, proposals, terms and representations to the extent permitted by Australian law and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communication between the parties during the term of the Agreement;
b. No modification to the Agreement will be binding, unless in writing and signed by a duly authorised representative of each party, in which the parties must identify their representatives before signing the Agreement. Such a person must be identified and noted in the Agreement.
3. QUOTATIONS AND ORDERS
3.1 Any Quotation will remain valid for a period of thirty (30) days from the date on which it was made.
3.2 Prices in the Quotation:
a. Are subject to the Business’s Rates Schedule current at the date of the Quotation unless otherwise varied in writing;
b. Are based on rates of labour, cost of materials, services and currency exchange rates (if applicable) current at the date of the Quotation;
c. Are based on rates of Customs Duty, Primage, Freight Exchange and Sales Tax current at the date of the Quotation, if applicable;
d. The Purchaser acknowledges and agrees that the prices or estimates in the Quotation may vary after the date of the Quotation and that it will pay for all additional incidental or ancillary charges, rates and disbursements as reasonably required by the Business or any third party. The Business will promptly notify the Purchaser of any such variation in writing.
e. We may cancel an Order by written notice to you: (a) at any time
prior to supply; or (b) after supply, if there is a breach in the contract and the purchaser does not collaborate in accordance with the Order (including unrealistic demand on additional work unspecified before signing the Contract).
f. The Business must ensure that goods must be new, fit for the purpose for which they are acquired, free from damage and defects in workmanship and materials and of merchantable quality. Services must be performed to a high standard of professional care and skill by appropriately trained and qualified personnel.
3.3 Without limiting clause 3.2 f, the Business must assign to the Purchaser benefit of any warranty or guarantee given by the manufacturer in respect
3.4 The Purchaser may reject products which do not comply with the Order or these Standard Terms. However, this shall not apply if the Purchaser have previously inspected and/ or accepted them. Where products are rejected, the Business must, at Purchaser’s option within 5 days: (a) replace, repair or re-supply the products at your expense; or (b) refund to the Purchaser any amount we paid for the rejected products. This is subject to goods available at this time frame from the suppliers.
3. 5 Subcontracting: The Business may subcontract the whole or any part of it’s obligations under this contract. However, the Business will remain principally liable for the performance of this contract and the acts and omissions of any subcontractor.
4. CREDIT INFORMATION
4.1 The Purchaser irrevocably authorises the Business, its agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Purchaser from time to time including the making of enquiries with persons nominated as trade references, the bankers of the Purchaser, any other credit provider or a credit reporting agency (hereinafter called “the information sources”). The Purchaser authorises the information sources to disclose to the Business such information concerning the Purchaser which is within their possession and which is required by the Business to the fullest extent permitted by the relevant privacy laws of the territory.
4.2 The Purchaser agrees that the information provided on any credit application signed by the Purchaser concerning the Purchaser may be disclosed by the Business to a credit reporting agency or any other interested person to the fullest extent permitted by the relevant privacy laws of the territory.
5. TERMS OF PAYMENT
5.1 Unless otherwise provided by the Business in writing, all invoices are due and payable as per written instruction in the Invoice or payment document in full or at least 40% deposit within fourteen (14) days from the date of the invoice to which the Goods and/or Services relate. If the job is immediate, the Purchaser pays in full. Or otherwise upon delivery of the Goods or completion of the Services. Or as agreed between the parties, preferably conveyed through and in writing.
5.2 Any agreement by the Business to extend the terms of credit or other indulgence granted to the Purchaser shall not affect the Purchaser’s liability to account to the Business as aforesaid.
5.3 If the Purchaser defaults in making payment in accordance with these Terms, the business may in its absolute discretion and without notice:
a. Charge the Purchaser compound interest calculated on that portion of the Purchaser’s account overdue at 3 percent above the penalty rate fixed under the Penalty Interest Rates Act of Australia, from time to time, calculated and payable daily from the due date until the date on which the invoice is paid in full; and
b. Require the Purchaser to reimburse the Business for all collection costs including (but not limited to) legal costs incurred by the Business, calculated on a solicitor and client basis, as a consequence of the Business instructing its solicitor to provide advice to it in connection with the default and/or to institute such recovery process as the Business in its absolute discretion decides and any other costs, expenses, losses or damages arising out of a breach of the Agreement.
5.4 The Purchaser agrees at the request of the Business to procure its directors to sign a guarantee and indemnity of the Purchaser’s obligations to pay any amount due and payable to the Business, if and when required.
5.5 Any work order approved by the Business for the Purchaser related to trading between the Business and the Purchaser is granted by the Business on the basis of it reliance on information supplied by and representations made on behalf of the Purchaser and, in particular, on the information disclosed by the Purchaser in relation to the ownership of the Purchaser as set out in the application for that account.
5.6 If the Purchaser is a company or trustee it shall inform the Company of any prospective or actual changes to the ownership of the Purchaser whether total or partial by forwarding a notice in writing of that change to the Company immediately upon becoming aware of same.
5.7 Until such notice as required in clause 6.6 is received by the Company the Purchaser, and if the Purchaser is a trustee each of the trustees, shall hold the Company indemnified against all losses, unpaid accounts, interest, damages, costs, charges, fees and expenses of whatsoever nature incurred or suffered by the Company in trading with any person, company or other entity (including a trust) which may have purchased the Purchaser’s business or any interest therein or any of the shares in the Purchaser and used the Purchaser’s previously approved credit account for trading.
5.8 The Purchaser authorises the Company to lodge a caveat over any real property owned or partly owned by the Purchaser in respect of, and to secure any monies that are owed by the Purchaser to the Company.
5.9 Any credit facility granted by the Company to the Purchaser shall continue until terminated by the Company at its sole discretion. Termination by the Company of any credit facility shall be either oral or in writing.
6. RATES AND CHARGES
6.1 The Purchaser agrees to be bound by the Business’s prescribed rates and charges as set out in the Rates Schedule from time to time or as otherwise agreed between the Purchaser and the Business in writing.
6.2 The price for products is the price stated in our Order/Invoice.
6.3 Unless the Invoice expressly states otherwise, it includes: (a) any
applicable GST; and (b) all packing, insurance and delivery
charges and all taxes and duties.
6.4 The Business will only invoice you after all products have been agreed and confirmed completed to the satisfaction of the parties in discussion. The invoice must: (a) be correctly addressed; (b) identify our Order number; (c) be a valid tax invoice for GST purposes, if applicable; and (d) where if requested it, be accompanied by documentation substantiating the amount claimed.
6.5 You must pay all correctly rendered and undisputed invoices within
the time frame specified in your invoice.
6.6 If we dispute an invoice (a) due payment is charged until the
dispute is resolved and (b) you must give us any information or
document we request in relation to the invoice or the dispute in delay.
6.7 As well as any of our other rights, we may deduct from your
invoice any amount you owe us (including under any indemnity). This includes the work we had actually performed in number of hours, the travel charges we made, delivery done, among others.
6.8 All products other than roofing is charged $ 80 per delivery, which forms part of the Invoice. If the customer cancels any work, delivery rate is charged as per the work performed (for instance bringing the goods at site and taking it back and is charged per delivery). All deliveries are inclusive of 30min unloading time every 60min after that is $95.00 per hour. If by any reason products cannot be delivered due to lack of information or no room on site etc. the products will be brought back to the Business and the original fee will be charged again (Remember, the drivers will not carry out any unsafe or unlawful duties on site). 11 Stars GV will not take responsibility for goods that are left on site where no one can sign.
6.9 Where it is unspecified, we charge an hourly/daily rate as follows:
a. $60/hour flat rate for any work, unless the work is performed as Invoice.
b. Where an hourly rate is not applicable, $450 daily rate for any work, unless the work is performed as Invoice. Invoices cancelled incur a daily charge of $ 300.
6.91 An admin charge of 3% of the total invoice cost including GST shall be charged for works cancelled and not performed but cancelled after the work order is issued and Invoice agreed.
6.92 For works performed after hours (after 6 pm up to 10 pm), irrespective of the number of hours worked, it shall be considered as one full day in addition to any day work performed. Such hours worked shall be charged on a daily rate and not on hourly rate.
7. PUBLICITY & INTELLECTUAL PROPERTY
7.1 The Business acknowledges that any intellectual property in the Goods or outcomes from the Services after delivered to the site identified by the Purchaser is owned by the Purchaser, unless the work is cancelled.
7.2 The Purchaser agrees not to disclose to others any proprietary or confidential information acquired hereunder including the terms of the Agreement except as authorised in writing by the Business or as required by law.
7.3 The Purchaser agrees not to disclose to others any proprietary or confidential information acquired hereunder including the terms of the Agreement except as authorised in writing by the Business or as required by law.
8. DELIVERY AND CANCELLATION
8.1 The Business will make all reasonable efforts to deliver the Goods and/or Services by the agreed delivery date but will not be liable in any way should delivery not be made on this date.
8.2 A Quotation shall only be cancelled or varied with the written agreement of both parties.
8.3 Any agreement to cancel or vary a Quotation pursuant to clause 8.2 shall be subject to the Business being compensated for all work done and materials used prior to the cancellation or variation.
9. WITHHOLDING SUPPLY
9.1 The Business reserves the right, irrespective of whether or not any Quotation has been accepted, to withhold supply of Goods and/or Services to the Purchaser where the Business has determined, in its absolute discretion, that work should no longer be extended to the Purchaser and the Business will not be liable for any loss or damage resulting directly or indirectly from such action.
10. PURCHASER LIABILITY AND DEFAULT
10.1 If the Purchaser shall:
a. Fail to make any payment due under the Agreement or commit any other breach of any of the Purchaser’s obligations under the Agreement; or
b. Suffer any execution;
c. Commit an act of bankruptcy;
d. Make any composition or arrangement with creditors;
e. The Business may at its option treat the Agreement as terminated and any amounts owing to the Business then unpaid whether or not due under the terms of this Agreement (including any amount arising from any outstanding but unfilled orders as at the date of termination) shall forthwith become due and payable and such termination shall be without prejudice to any claim or rights the Business may possess.
11. RETURN POLICY FOR GOODS
11.1 No Goods manufactured and supplied in accordance with the Contract/Invoice will be acceptable for return and credit if the purchaser uses it or amends it or does not maintain its original condition, while the goods are in their possession.
11.2 Nothing in this clause affects any statutory obligations of the Business in relation to the Goods (or corresponding rights of the Purchaser), that may not lawfully be excluded.
11.3 No part of the goods or service shall be refunded in full if it has been used or part of the good or service has been consumed.
11.4 No part of the goods or service shall be held liable of 11 Stars GV, if the work is cancelled after the work order is issued.
12 DISPUTE RESOLUTION
12.1 If a dispute arises in any way out of this Agreement, or its breach, termination, validity or the Goods and/or Services the subject of this Agreement, the parties agree to endeavour to settle the dispute by mediation before having recourse to litigation, other than for disputes involving the payment for Goods and Services by the Purchaser.
12.2 Any costs incurred in relation to the mediation of a dispute are to be shared equally between the Business and the Purchaser.
12.3 Nothing in this Agreement prevents either party from seeking urgent interlocutory intervention.
13. FORCE MAJEURE
13.1 The Business will not be liable in damages or otherwise for any failure to provide the Goods and/or Services which is caused, whether wholly or partially, by an event beyond its reasonable control including (but not limited to) Act of God, force majeure, war, fire, explosion, acts of terrorism, rioting, burglary, theft, civil disturbances, restrictions by governments (local, municipal, State or Federal) or other competent authority, general economic trends, strikes or lockouts (whether at the Business’s premises or not), accidents either at the Business’s premises or when in transit to or from those premises, failure by subcontractors and the late arrival of inventory or other material.
13.2 In instances where the work is delayed due to other contractors, and that reasonable amount of time is not available or provided for 11 Stars GV to prevent any foreseeable damage, we do not take any part of liability on this front. The customer must take all necessary arrangement to pursue such damage on their own.
14 RESERVATION OF TITLE AND RISK
14.1 Title to the Goods will not pass from the Business to the Purchaser until the Business receives payment in full for all Goods and for all money owing by the Purchaser to the Business on any account whatsoever.
14.2 Notwithstanding clause 14.1, risk in the Goods shall pass to the Purchaser upon the sooner of happening of the delivery to the delivery destination or upon the loading of the Goods on an third party vehicle or the Purchaser’s vehicle for delivery to the delivery destination.
14.3 Until title to the Goods passes to the Purchaser in accordance with clause 14.1 the Purchaser holds the Goods as bailee and fiduciary agent of the Business.
14.4 The Purchaser must keep the goods insured and in a safe and marketable condition and the Purchaser must store the Goods separately in a manner that clearly identifies them as the property of the Business.
14.5 The Purchaser shall not sell the Goods in the ordinary course of business to a third party unless as agreed. Such action if sold before the parties agree shall be held breach of agreement and taken action accordingly as per the terms here.
15. LIEN AND SET OFF
15.1 Without prejudice to any other remedies the Business may have, it shall in respect of unpaid debts due to it from the Purchaser have a lien on all goods or property of the Purchaser in it’s possession (whether worked on or not) and it shall be entitled and is hereby authorised on the expiration of seven (7) days notice in writing to the Purchaser to dispose of such goods or property as the Business thinks fit and to apply any proceeds received towards such debts or set off against any liability of the Business to the Purchaser whether actual or contingent, primary or collateral, joint and several and whether expressed as a liability to pay money or a liability to delivery or transfer Goods.
16. EXCLUSIONS AND LIMITATIONS
16.1 The Business excludes all statutory or implied conditions and warranties to the maximum extent permitted by law.
16.2 If any law, implies in this Agreement any term, condition or warranty and that law avoids or prohibits provisions in an agreement excluding or modifying the application of or exercise of, or liability under, that term, condition or warranty, that term, condition or warranty shall be deemed to be included in this Agreement provided that the liability of the Business for a breach of the applicable term, condition or warranty (other than where such limitation is excluded by law) is limited to, at the option of the Business, any one or more of the following:
a. If the breach relates to Goods:
(i) The replacement of the goods or the supply of equivalent goods, the repair of the goods;
(ii) The payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iii) The payment of the cost of having the goods repaired; and
b. If the breach relates to Services:
(i) Supplying the services again or paying the costs of having the services provided again.
16.3 To the maximum extent permitted by law, the Business excludes its liability (including, but not limited to, liability in tort, contract and for breach of statute) to the Purchaser or any other person for:
a. any loss or damage consequential or otherwise (whether contractual, tortious, statutory or otherwise) for any special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, or revenue arising out of or in connection with the provision of the Goods, Services and/or any other goods or services under this Agreement and whether as a result of any breach, default, negligence or otherwise by the Business suffered or incurred by the Purchaser or any other person in relation to the Goods and/or Services; and
b. In particular, but without limiting clause 16.3a, any loss or damage consequential or otherwise suffered or incurred by the Purchaser or any other person caused by or resulting directly from any failure, defect or deficiency of any kind of or in the Goods and/or Services.
17.1 Any claims by the Purchaser in relation to the Goods or Services must be made within fourteen (14) days of delivery of the Goods or provision of Services, as the case maybe.
17.2 Any other claims for adjustment to any invoice for any reason whatsoever must be made in writing within fourteen (14) date of said invoice.
17.3 Nothing in this clause affects any statutory obligations of the Business (and corresponding rights of the Purchaser), which may not lawfully be excluded.
19.1 All contracts between the Company and the Purchaser shall be subject to the laws of Australia, and the Purchaser agrees to submit to the non-exclusive jurisdiction of the Courts of Australia.
20.1 If any provision of this Agreement does not comply with any law, then the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, then it must be treated as severable from the rest of this Agreement.
21 INDEMNITY AND INSURANCE
The Purchaser indemnify the Business, its officers, employees, agents and customers against all loss, damage, claim, expense or liability incurred in
connection with: (a) the Purchaser’s non-cooperative performance or breach of this contract;
(b) any products that has been mishandled while at the Purchaser’s possession; (c) a claim by a third party that the
products infringe their intellectual property rights; and (d) any
negligent or wilfully wrong act or omission by the Purchaser, your
employees, agents and contractors.
21.2 The Purchaser and the Business must effect and maintain appropriate insurance policies, taking into account the products you supply. Both parties must provide with proof of your insurance upon request by each other.
21.3 These Standard Terms must not be construed to our disadvantage
merely because the Business prepared them.
22 Definitions and interpretation
22.1 In these Standard Terms:
• The singular includes the plural and vice versa.
• A person includes a firm, body corporate, unincorporated
association or authority and reference to a person includes their
executors, administrators, successors, substitutes and assigns.
• A reference to ‘$’ is a reference to Australian currency.
• ‘Including’ and similar expressions are not words of limitation.
• ‘Goods’ means goods set out in our Order/Invoice.
• ‘Products’ means goods and / or services and includes any deliverable resulting from a service.
• ‘Services’ means services set out in our Order/Invoice.
• ‘Us’, ‘we’ or ‘our’ means 11 Stars Groups and Ventures ABN 79 224 452 611.
• ‘You’ or ‘your’ means the Purchaser of products set out in our Order/Invoice