Terms & Conditions of Supply

In these terms and conditions:

The ACL provides Consumers with a number of consumer guarantees that cannot be excluded or limited. These Terms and Conditions are therefore subject to, and will not apply to the extent that they limit or exclude, such consumer guarantees or any other rights which You may have under law which are not capable of being excluded (Non-Excludable Rights).

1. (a)
   Prices specified in the Quotation are exclusive of GST, unless stated otherwise.
2. (b)
   We reserve the right to charge additional fees for any special requests or changes You request and which We agree to after the Quotation becomes an Accepted Quotation, including in circumstances such as:

   1. (i)
      where You request expedited delivery; or
   2. (ii)
      where You request changes to the Goods and/or Services to be supplied after acceptance of the Quotation.
3. (c)
   For the avoidance of doubt, while We will seek to accommodate any special requests or changes, We are not liable to You if We are unable to accept any such special requests or changes to an Accepted Quotation, in which case the Goods and/or Services will be supplied in accordance with the initial Accepted Quotation. For the avoidance of doubt, We will not apply any additional fees unless agreed to by You in a revised Accepted Quotation.

1. (a)
   We will provide You with as much notice as possible if We believe there may be any delay in the date for delivery of the Goods and/or Services.
2. (b)
   The Accepted Quotation will include an indicative delivery date only. We will continue to inform You of any updated delivery date information via Your nominated email address or phone number.
3. (c)
   We may (acting reasonably) deliver the Goods or make the Goods available for pickup in separate instalments even if they appear in one Accepted Quotation.

1. (a)
   Risk in any Goods which We supply to You passes to You upon the delivery or collection of the Goods (as applicable).
2. (b)
   We will not be liable for any damage to the Goods once risk has passed to You, except for damage We cause.
3. (c)
   Title in any Goods which We supply to You passes:

   1. (i)
      if You pay the price for the Goods prior to delivery or collection, on delivery or collection (as relevant);
   2. (ii)
      if You pay the price for the Goods after delivery or collection, on receipt by Us of payment in full.
4. (d)
   All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA (as applicable).
5. (e)
   Until title passes to You, after You have taken delivery of the Goods, You must:

   1. (i)
      store the Goods separately and clearly mark them as Arrow Industries' property;
   2. (ii)
      not dispose of, sell, or transfer the Goods without Our prior written consent; and
   3. (iii)
      not deal with the Goods in any way which suggests that You are the legal owner of the Goods.
6. (f)
   Until title passes to You:

   1. (i)
      in addition to any rights We may have under Chapter 4 of the PPSA, We may at any time, demand the return of the Goods and shall be entitled without notice to You to enter Your premises where We suspect the Goods may be located in order to search for and remove the Goods without committing a trespass, even though they may be attached or annexed to other goods or land not of Our property;
   2. (ii)
      for the purpose under clause 8(f)(i), You irrevocably licence Us to enter such premises, and undertake that You will procure any necessary authority to enter from any relevant person, and also indemnify Us from and against all Loss suffered or incurred by Us as a result of exercising Our rights under this clause, except to the extent that such Loss was directly caused by Our negligence;
   3. (iii)
      if there is any inconsistency between Our rights under this clause 8(f) and Our rights under Chapter 4 of the PPSA, this clause 8(f) prevails to the extent permitted by law;
   4. (iv)
      You acknowledge that and warrant that We have a security interest (for the purpose of the PPSA) in the Goods and You must do anything reasonably required by Us to enable Us to register Our security interest, with the priority We require and to maintain that registration; and
   5. (v)
      the security interest arising under this clause 8 attaches to the Goods when You obtain possession of the Goods and the parties confirm that they have not agreed that any security interest arising under this clause 8 attaches at any later time.

1. (a)
   Unless a contrary intention appears, words or expressions used in this clause 9 that are defined in the PPSA have the same meaning as given to them in the PPSA.
2. (b)
   If at any time We determine that the Accepted Quotation creates a security interest in Our favour over any personal property, We may apply for any registration, or give any notification, in connection with that security interest and You must promptly, upon Our request, do anything (including signing and producing documents, getting documents completed or signed, obtaining consents and supplying information) to:

   1. (i)
      provide more effective security over the relevant personal property;
   2. (ii)
      ensure that any such security interest in favour of Us:

      1. (A)
         is at all times enforceable, perfected (including, where applicable, by control as well as by registration) and otherwise effective; and
      2. (B)
         ranks as a first priority security interest;
   3. (iii)
      enable Us to prepare and register a financial statement or a financing change statement or give any notification in connection with that security interest; and
   4. (iv)
      enable Us to exercise any of Our rights or perform any of Our obligations in connection with any such security interest or under the PPSA.
3. (c)
   We do not need to give You any notice required under the PPSA (including a notice of a verification statement under section 157 of the PPS) unless the requirement for the notice cannot be excluded.
4. (d)
   Neither party will disclose to a person or entity that is not a party to these Terms and Conditions information of the kind mentioned in section 275(1) of the PPSA unless section 275(7) of the PPSA applies or that information is publicly available. The obligations of each party under this clause are in addition to the obligations of both parties under clause 14.

You represent and warrant that any Customer Property that remains at Our premises, for any period of time:

1. (i)
   is authorised to be left at Our premises;
2. (ii)
   is in a reasonably safe condition for Us to carry out our Services;
3. (iii)
   satisfies roadworthiness minimum standards (except where the Services We are asked to provide relate to the roadworthiness of Your Property);
4. (iv)
   can be driven into different areas on Our premises (if applicable);
5. (v)
   does not have any leaks of any kind; and
6. (vi)
   does not pose any health or safety risk to Us or any member of the public.

You must reimburse Us on demand for any loss, liability, damage, cost, expense, fine or penalty We suffer or incur as a result of Your failure to comply with this clause, except to the extent caused or contributed to by Us or Our personnel.

1. (a)
   Subject to clauses 2 and 12(b), Our liability for any loss suffered or incurred by You due to Our failure to comply with a consumer guarantee under Division 1 of Part 3-2 of the ACL (Consumer Guarantee), which arises out of or in connection with Our provision of Goods or Services to You:

   1. (i)
      in the case of Goods, is limited to:

      1. (A)
         the replacement of the Goods or the supply of equivalent goods;
      2. (B)
         the repair of the Goods;
      3. (C)
         the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
      4. (D)
         the payment of the cost of having the Goods repaired;
   2. (ii)
      in the case of the Services, is limited to:

      1. (A)
         the supplying of the Services again; or
      2. (B)
         the payment of the cost of having the Services supplied again; and
2. (b)
   Our liability in respect of a breach of or a failure to comply with a Consumer Guarantee will not be limited in the way set out in clause 12(a) if:

   1. (i)
      the Supply supplied are goods or services “of a kind ordinarily acquired for personal, domestic or household use or consumption”, as that expression is used in section 64A of the ACL;
   2. (ii)
      it is not “fair or reasonable” for Us to rely on such limitation in accordance with section 64A(3) of the ACL; or
   3. (iii)
      the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the ACL.
3. (c)
   Subject to clause 2 neither party will be liable for Consequential Loss.
4. (d)
   Subject to clause 2, We shall have no liability to You for any loss You suffer or incur (other than through Our breach of a Consumer Guarantee in which case clause 12(a) will apply) in relation to the provision of Goods and/or Services by Us, except to the extent We cause or contribute to the loss.

1. (a)
   Either Party (the Non-Defaulting Party) may terminate an Accepted Quotation immediately on the provision of written notice to the other party (the Defaulting Party) if:

   1. (i)
      the Defaulting Party fails to remedy a breach of that Accepted Quotation or these Terms and Conditions in respect of that Accepted Quotation within 10 (ten) Business Days of being notified in writing of that breach by the Non-Defaulting Party; or
   2. (ii)
      the Defaulting Party suffers an Insolvency Event.
2. (b)
   Where an Accepted Quotation is terminated under clause 13(a) or where otherwise permitted under these Terms and Conditions:

   1. (i)
      You must pay Us the Price for all completed Goods and or Services provided to You prior to that termination which are not yet paid for;
   2. (ii)
      You must be refunded any Price paid (including any deposit) for Goods and/or Services not yet provided to You prior to that termination; and
   3. (iii)
      the accrued rights and responsibilities or the parties are not otherwise impacted.
3. (c)
   Despite clause 13(b)(ii), We reserve the right to keep any portion of the deposit which covers costs and expenses We have already incurred in respect of an Accepted Quotation up to the date of termination in circumstances where We terminate for Your breach.

1. (a)
   Each party (Non-Disclosing Party) agrees not to disclose (or permit to be disclosed) or use any Confidential Information of the other party (Disclosing Party) without the prior written consent of the Disclosing Party.
2. (b)
   Clause 13(a) does not apply to the extent that the:

   1. (i)
      disclosure was required to be made in order for the Non-Disclosing Party to perform its obligations under these Terms and Conditions or an Accepted Quotation;
   2. (ii)
      disclosure is required by law or any government agency;
   3. (iii)
      Confidential Information has become within the public domain (other than by breach of this clause); or
   4. (iv)
      disclosure is made to a party's professional advisors.

1. (a)
   Neither party will be liable to the other for any failure or delay in the performance of its obligations under these Terms and Conditions or an Accepted Quotation where such failure or delay is due to a Force Majeure Event.
2. (b)
   If there is a Force Majeure Event, the affected party must:

   1. (i)
      prove the existence of the Force Majeure event to the reasonable satisfaction of the other party; and
   2. (ii)
      make every reasonable effort to minimise the impact of the Force Majeure Event; and
   3. (iii)
      resume performance of its obligations under these Terms and Conditions and/or Accepted Quotation as soon as reasonably possible after cessation of the Force Majeure Event.
3. (c)
   Either party may terminate an Accepted Quotation immediately by providing notice in writing to the other party if a Force Majeure Event continues to effect that Accepted Quotation for at least 2 (two) months.

1. (a)
   We remain the owner or licensee (as the case may be) of all Intellectual Property Rights We owned or used prior to the relevant Accepted Quotation.
2. (b)
   You remain the owner or licensee (as the case may be) of all Intellectual Property Rights You owned or used prior to the relevant Accepted Quotation.
3. (c)
   The parties agree that any Intellectual Property Rights created or developed under or in connection with the provision of Goods and/or Services under an Accepted Quotation are owned by Us, unless otherwise agreed in writing. For the avoidance of doubt, where We have created any design or drawings in connection with the provision of any Goods or Services, then the copyright in those designs and drawings remains vested in Us, and You may only use such Intellectual Property Rights to the extent necessary for You to derive the benefit of the Goods and/or Services which We supply.

1. (a)
   If there is a dispute, controversy or claim under or in respect of these Terms and Conditions and/or an Accepted Quotation between the parties (Dispute), then within 5 (five) Business Days of a party notifying the other party in writing of the Dispute, both parties must meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.
2. (b)
   If the Dispute is not settled within 15 (fifteen) Business Days of notification under clause 16(a), the parties will (unless both parties agree in writing not to) submit the Dispute to mediation administered by the Australian Disputes Centre (or another mediation organisation agreed to by the parties), where:

   1. (i)
      the mediator will be an independent person agreed between the parties or, failing agreement, a mediator will be appointed by the President of the Australian Disputes Centre; and
   2. (ii)
      the costs of the mediator will be borne by both parties equally.
3. (c)
   A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in this clause, unless the party seeks injunctive or other interlocutory relief. For the avoidance of doubt, it is agreed that a party may start court proceedings in relation to a Dispute if the parties have agreed not to submit the Dispute to mediation in accordance with clause 16(b).

1. (a)
   Words or expressions used in this clause 18 that are defined in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning given to them in that Act.
2. (b)
   Unless otherwise stated, any amount specified in an Accepted Quotation as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.
3. (c)
   If a party makes a taxable supply under these Terms and Conditions and/or an Accepted Quotation (Supplier), then the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.
4. (d)
   Despite anything stated in this clause 18, the Recipient is not obliged under these Terms and Conditions and/or an Accepted Quotation to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply.
5. (e)
   If an adjustment event arises in relation to a taxable supply made by a Supplier under these Terms and Conditions and/or an Accepted Quotation, the amount paid or payable by the Recipient pursuant to clause 18(c) will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.
6. (f)
   If a third party makes a taxable supply and these Terms and Conditions and/or an Accepted Quotation requires a party (the Payer) to pay for, reimburse or contribute to (Pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the Payer must Pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.

1. (a)
   Any Accepted Quotation may only be varied with the written agreement of both parties.
2. (b)
   We may vary these Terms and Conditions unilaterally by notice in writing to You. Such altered Terms and Conditions will take effect 30 days after the variation is notified to You in writing (Notice Period) and will apply to all new Accepted Quotations which are accepted under clause 4.2 after the Notice Period ends. For clarity, any Accepted Quotation that is already on foot during or before the expiry of the Notice Period will be subject to the version of the Terms and Conditions which was in effect at the time the Accepted Quotation was accepted under clause 4.2.
3. (c)
   No waiver by a party of a breach of any obligation contained or implied in these Terms and Conditions or Accepted Quotation operates as a waiver of another breach of the same or of any other obligation contained or implied in these Terms and Conditions or Accepted Quotation.
4. (d)
   If the whole or any part of a provision of these Terms and Conditions or Accepted Quotation is void, unenforceable or illegal it is severed. The remainder of this Terms and Conditions or Accepted Quotation (as applicable) continues to have full force and effect.
5. (e)
   These Terms and Conditions are governed by the law of Victoria, Australia. Both parties submit to the jurisdiction of the courts of Victoria and waive any right to claim that those courts are inconvenient forums.
6. (f)
   Any notice, demand, consent or approval (Notice) given under this Terms and Conditions or Accepted Quotation must be in writing, addressed and delivered to the other party as per the details in the associated Quotation (or as otherwise notified by that party to the other from time to time) and signed by or on behalf of the party giving the notice. Notices given under this Terms and Conditions or Accepted Quotation will be deemed to be received (in the case of prepaid post) on the fourth Business Day after the date of posting, (in the case of email) at the time sent (unless a delivery failure notification is received by the sender), or (if delivered by hand), at the time of delivery.
7. (g)
   The following clauses survive the conclusion or expiry of these Terms and Conditions and the termination or fulfilment of any Accepted Quotation:

   1. (i)
      clause 11 (warranties);
   2. (ii)
      clause 13 (confidentiality);
   3. (iii)
      clause 16 (disputes); and
   4. (iv)
      clause 18 (general).

By signing below, You acknowledge that You have read and understood these Terms and Conditions and agree to be bound by them whenever engaging Us to provide You with Goods or Services.