This Agreement is made in 2017 between Tanya and John Stanley trading as Tanjah Industries, ARBN BN17489945 of 31 Overland Drive EDENS LANDING QLD 4207 (“Tanjah”); and (“You”).
A. Tanjah sells the Goods and You buy the Goods on the following terms and conditions.
B. You accept these terms and conditions by clicking on the “I agree” button at the bottom of this document.
1.1 In this Agreement, unless inconsistent with the context:
(a) Agreement means this agreement, its recitals, provisions and any schedule of this agreement.
(b) Clause means a clause of this Agreement.
(c) Force Majeure means an act, omission or circumstance over which Tanjah could not have reasonably exercised control including telecommunication failures.
(d) Goods means the goods supplied by Tanjah pursuant to this Agreement.
(e) Intellectual Property Right includes any right arising from or capable of arising from the: Circuits Layout Act 1989 (Cth); Copyright Act 1968 (Cth); Designs Act 2003 (Cth); Patents Act 1990 (Cth); Trade Marks Act 1995 (Cth); any similar legislation outside the Commonwealth of Australia; any similar unregistered right and confidential information.
(f) Interest Rate means the rate of 10% per annum calculated monthly in arrears and added to the outstanding sum.
(g) Order means a purchase order issued by You as part of the purchasing process.
(h) Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.
(i) Price means the price specified in an Order.
(j) Specification means the manufacturer’s specification as updated from time to time.
(k) Sub-clause means a sub-clause of this Agreement.
(l) Taxes includes taxes, duties and government charges, fees, levies, any penalty for not paying same and any liability for same.
2.1 In this Agreement, unless inconsistent with the context:
(a) Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.
(b) Words denoting the singular number shall include the plural number and vice versa.
(c) Words denoting any gender shall include all other genders.
(d) A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.
(e) Money references are references to Australian currency.
(f) A reference to “includes”, “including” or “inclusive” is to be construed as being a reference to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively.
(g) Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.
(h) Every obligation express or implied into this Agreement and entered into by more than one Party shall bind them jointly and each of them severally.
(i) Every right express or implied into this Agreement granted in favour of one more or Parties shall be for the benefit of each of them jointly and severally.
(j) A provision of this Agreement shall not be construed adversely to the Party that drafted it.
(k) If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.
(l) The recitals, provisions and any schedule to this Agreement form part of this Agreement.
(m) No right or remedy granted to Tanjah pursuant to this Agreement excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to Tanjah and all such granted rights and remedies are cumulative.
3.1 You may place an Order.
3.2 Tanjah may in its sole discretion accept or reject an Order notwithstanding that Tanjah may have prepared same.
3.3 Tanjah may at any time correct any mistake in any Order.
4.1 If Tanjah accepts an Order, then upon receipt of payment in full for same including delivery Tanjah sells You the Goods and You buy the Goods described in the Order.
4.2 Title in the Goods shall only pass to You upon full payment of all moneys owing under this Agreement.
4.3 Once an Order is accepted by Tanjah it may not be withdrawn by You.
4.4 Any terms and conditions of an Order which are inconsistent with any provision of this Agreement are irrelevant when construing this Agreement.
5.1 Unless specified otherwise in an Order, Tanjah shall have no obligation to deliver the Goods.
5.2 You warrant that any information supplied by You in relation to Your name, address and other details are true and correct in every particular.
5.3 Delivery is deemed to have occurred once an attempt is made to deliver to the address supplied by You.
5.4 All delivery dates are estimates only and are calculated from when the Order is accepted by Tanjah.
6.1 Risk of loss or damage to the Goods passes to the You upon delivery to You.
6.2 Between the delivery of the Goods to You and the passing of title pursuant to this Agreement, You shall insure the Goods with a reputable insurance company in favour of the Tanjah in an amount equal to its full replacement cost against all risks of loss or damage due to any cause.
7.1 Tanjah makes no representation that the Goods are suitable for any purpose other than that expressly set out in the Specification.
8.1 The Goods are supplied for use only within Australia.
9.1 Tanjah may, without consultation with You, substitute or modify the Goods or a component thereof prior to delivery.
9.2 The substitution or modification referred to in Sub-clause 9.1 may only occur if, in the opinion of Tanjah, such substitution or modification has no adverse effect on the performance or capacity of the Goods.
9.3 You acknowledge that the manufacturer may from time to time change the Specification.
10.1 Tanjah shall comply with its Returns Policy which can be found at http://www.tanjatools.com/returns-policy/.
12. Intellectual Property Rights
12.1 You acknowledge that Tanjah remains the sole owner of Intellectual Property Rights in its website.
13.1 You shall pay Tanjah the Price without withholding, deduction or offset of any amounts for any purpose.
13.2 An account rendered by e-mail or otherwise by Tanjah shall be prima facie evidence for a Court of the provision of the items referred to in same to You by Tanjah.
14.1 Unless expressly stated to the contrary and to the extent permitted by law:
(a) the Price is exclusive of all Taxes which may arise in relation to the subject matter of this Agreement;
(b) You shall immediately pay any applicable Taxes to Tanjah; and
(c) You shall indemnify and keep indemnified Tanjah from payment of the Taxes and any penalties arising from non-payment of same.
15.1 You shall pay Tanjah interest at the Interest Rate on all overdue amounts from the due date until payment is made.
16. Suspension of Obligations
16.1 If You breach any provision of this Agreement Tanjah may, without further notice to You,
(a) suspend all its obligations to You under this Agreement;
(b) withdraw any discount which was otherwise applicable to the Price.
17. Limited Warranty
17.1 You shall be entitled to the benefit of all manufacturers’ warranties which are available with respect to the Goods.
17.2 Tanjah shall not be responsible for enforcing same on Your behalf.
18. Limitation of Liability
18.1 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of Tanjah for any breach of such term shall be limited, at the option of Tanjah, to any one or more of the following: if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.
18.2 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, Tanjah shall not be under any liability (contractual, tortious or otherwise) to You in respect of any loss or damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or an act, failure or omission of Tanjah.
You warrant that You have not relied on any representation made by Tanjah or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Tanjah.
19.1 To the extent permitted by law, You shall release, indemnify and keep indemnified Tanjah, its officers, employees and agents, against any injury, death, damage, loss, costs (including legal costs on an indemnity basis), expenses, interest, taxes or liability whether direct or indirect and whether sustained by Tanjah, Tanjah’s officers, employees and agents, You, Your officers, employees and agents or a third party arising out of:
(a) a breach of this agreement by You;
(b) any wilful, unlawful or negligent act or omission by You, Your officers, employees or agents;
(c) any injury suffered by Your officers, employees or agents; and
(d) the discharge of Your obligations pursuant to this Agreement.
19.2 This indemnity applies regardless of whether or not legal proceedings are instituted.
19.3 This indemnity applies to any payment, settlement, compromise or determination regardless of whether same is authorised by Tanjah or not.
19.4 It is not necessary to incur any expense or make any payment before enforcing any right of indemnity under this Agreement.
19.5 This Clause survives termination of this Agreement.
20.1 This Agreement may be terminated by either Party without cause on 30 days notice provided that there is no then extant Order.
20.2 Tanjah may terminate this Agreement immediately by notice if:
(a) any payment due from You to Tanjah remains unpaid for a period of 14 days;
(b) You breach any Clause and such breach is not remedied within 14 days of notice by Tanjah;
(c) You become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration;
(d) You, being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving;
(e) You being a natural person, die; or
(f) You cease or threaten to cease conducting Your business in the normal manner.
20.3 If notice is given to You pursuant to this Clause then Tanjah, in addition to terminating this Agreement or any Order:
(a) may repossess any Goods in Your possession, custody or control which was supplied by Tanjah and which has not been paid for in full;
(b) may retain any moneys paid;
(c) may charge a reasonable sum for any un-invoiced items;
(d) shall, in the event of termination of this Agreement, be regarded as discharged from any further obligations under this Agreement;
(e) may pursue any additional or alternative remedies provided by law.
20.4 If You terminate this Agreement for convenience You shall pay Tanjah by way of liquidated damages the full amount remaining payable under the Order which amount the Parties agree is a genuine pre-estimate of the loss or damage which Tanjah would suffer in such circumstances.
21.1 The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.
22. Force Majeure
22.1 Tanjah shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.
23. Assignment, Novation and Sub-Contracts
23.1 You shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of Tanjah.
23.2 Tanjah may:
(a) sub-contract for the performance or part performance of this Agreement; and
(b) assign this Agreement to a third party without notice and in such circumstances, Tanjah’s rights and obligations under this Agreement shall be immediately terminated upon assignment.
24.1 No right of Tanjah under this Agreement shall be deemed to be waived except by notice in writing signed by Tanjah. Any such waiver shall be limited to its express terms.
24.2 Any failure by Tanjah to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by Tanjah shall not be construed as a waiver of Tanjah’s rights.
25. Governing Law
25.1 This Agreement shall be governed by and construed according to the law of Queensland, Australia.
25.2 The Parties irrevocably submit to the exclusive jurisdiction of the Courts of Queensland, Australia and the Commonwealth of Australia. Any proceedings in a Commonwealth Court shall be commenced in Queensland.
26.1 Notices under this Agreement may be delivered by hand, by email, by mail or by facsimile to any address supplied by You.
26.2 Notices shall be deemed given in the case of:
(a) hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
(b) email, immediately upon acceptance of same from a machine outside the control of the sender;
(c) posting, 3 days after dispatch; and
(d) facsimile, upon completion of transmission.
27. Entire Agreement
27.1 Unless stated expressly to the contrary in this Agreement:
(a) this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded;
(b) this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties;
(c) no Party may bind another Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and
(d) no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party.