These Terms and Conditions apply (unless otherwise previously agreed in writing) to the supply of Goods by adventure+ to a Purchaser from time to time. Any supply of Goods by adventure+ to the Purchaser made after the date of acceptance of these Terms and Conditions is a supply pursuant to the supply agreement constituted by these Terms and Conditions and the relevant order accepted by adventure+ and any such supply does not give rise to a new or separate agreement.
In these Terms and Conditions adventure+ means Adventure Playgrounds Pty Ltd trading as Adventure Plus Playgrounds and its related entities.
The Purchaser or playground operator is responsible to ensure that any goods purchased are suitable for the intended purpose, and that due consideration is given to such matters including, but not limited to, the user age-group, applicable regulations, expected supervision and site characteristics. In rendering advice or submitting designs we will rely on information supplied by the Purchaser who has a duty of care to disclose any relevant matter prior to ordering and the Purchaser will make no claim whatever against adventure+ if failing to do so.
It is the responsibility of the Purchaser to ensure that the equipment is in safe working order before allowing it to be used. The Purchaser is responsible to arrange all insurances and notify any relevant authorities and obtain any final approvals or permits relating to the project before allowing it to be used.
Certificates of Standards Compliance will be issued on request. While every endeavour is made to anticipate potential hazards, adequate supervision is required when equipment is in use. The Purchaser acknowledges that an element of risk applies to all children’s play and he/she purchases and/or operates the equipment in acceptance of all such risks.
It is the responsibility of the Purchaser to ensure that the equipment is in safe working order before allowing it to be used. For continued safety we recommend regular safety inspections as per the Owners’ Manual and the installation and maintenance of undersurfacing in accordance with Australian Standards.
QUOTATIONS AND ORDERS
Quoted prices are only valid if in writing and expire 60 days from the date of quotation. adventure+ reserves the right to amend prices as necessary after this period and the price charged will be the price current at the time of supply unless otherwise agreed in writing. Unless specifically stated otherwise, all prices are ex-factory, and delivery and/or travel charges will apply on to both kit and installed goods.
An order is binding on adventure+ when adventure+ receives an order to supply goods and/or services and either issues a written acknowledgement to the Purchaser or dispatches goods and/or provides services pursuant to that order. No order is binding on adventure+ until accepted by it.
An acceptance of the order by adventure+ is then to be an acceptance of these Terms and Conditions by the Purchaser and these Terms and conditions will override any conditions contained in the Purchaser’s order.
adventure+ reserves the right to reject any such order at its sole discretion or accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer.
adventure+ reserves the right to cancel any such order should the Purchaser be in any breach of these conditions with respect to any such prior or subsequent order, and the Purchaser shall indemnify adventure+ against any loss or damages caused by such cancellation.
An order which has been accepted in whole or in part by adventure+ cannot be cancelled by the Purchaser without obtaining the prior written approval of adventure+, which it may refuse in its absolute discretion.
In the absence of a written order for the supply of goods and/or services, the Purchaser agrees that the invoice issued by adventure+ accurately replicates and represents the order as placed by the Purchaser.
The price and the terms of trade are such as quoted by adventure+, or as otherwise agreed to by adventure+. All prices quoted are GST exclusive unless otherwise stated, and are subject to GST where applicable.
Payment of an invoice is to be made as stated on the Quotation for the particular project or as stated on the invoice (whichever date is the earlier.)
In the event that payment of an invoice is not made in accordance with clause 15 of these conditions, the Purchaser shall forfeit the right to any claim against adventure+ whatsoever and shall grant an unconditional and irrevocable indemnity to adventure+ against any such claim, and shall pay interest to adventure+ on any outstanding debts at the rate of twelve per cent (12%) per annum compounded until the date payment is received by adventure+.
TITLE TO THE GOODS
Title to ownership of any goods and/or services is retained by adventure+ until payment in full for the goods and/or services and all sums due and owing by the Purchaser to adventure+ on any account has been made.
Prior to the use or resale of any goods, the Purchaser shall store and maintain them in such original condition as when they departed from adventure+. If the goods are resold, or used in the manufacture of other goods and/or services and/or structures, the Purchaser shall act as fiduciary in the recovery of payment for the goods and/or services, segregating such proceeds for the account of adventure+ until payment is effected in full and the goods are always at the risk of the Purchaser. The Purchaser assigns to adventure+ any claims or rights to payments from the Purchaser’s debtors in order to enable adventure+ to make full recovery of any monies owed in respect of such goods and/or services supplied.
In the event of the Purchaser failing to pay for such goods and/or services in accordance with clause 15 of these conditions or if the Purchaser ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Purchaser payable to adventure+ is dishonoured, the Purchaser irrevocably grants adventure+ and any of its agents, the unconditional authority and consent to enter the Purchaser’s premises or any other location where the goods may be held, stored or installed for the express purpose of retrieving them and adventure+ may resell any goods recovered, or where the goods are fixed or have become a fixture to any other goods and/or structures, to use reasonable force to remove, detach, disassemble or otherwise take possession of the goods and/or services without liability for trespass, negligence or payment of any compensation to the Purchaser whatsoever, and the Purchaser shall indemnify adventure+ forever against any such claims brought by any other party.
PERSONAL PROPERTY SECURITIES ACT 2009 (Cth)
adventure+ and the Purchaser acknowledge that these conditions constitute a Security Agreement and entitle adventure+ to claim a Purchase Money Security Interest in favour of adventure+ over the Collateral supplied or to be supplied to the Purchaser as Grantor pursuant to these conditions. The goods supplied or to be supplied under these conditions fall within the PPSA classification of ”Other Goods” acquired by the Purchaser pursuant to these conditions. The Purchaser is hereby advised that registration in respect of all goods supplied will be made on the Personal Property Securities Register, and agrees to waive any obligation for adventure+ to provide notice under the Act, and in particular under section 95, 123, 130 and 135 and waives its right to receive notification of or a copy of any Verification statement confirming registration of a Security Interest. The Purchaser agrees to indemnify adventure+ on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the registration or amendment or discharge of any Financing Statement registered by adventure+ and enforcement or attempted enforcement of any Security Interest granted to adventure+ by the Purchaser. Defined terms in this clause have the same meaning as given to them in the PPSA.
DELIVERY AND INSTALLATION
All risk in and for such goods and/or services shall pass to the Purchaser either upon delivery to such location nominated or agreed to by the Purchaser, or upon collection by the Purchaser, or any servant, agent, courier or carrier of the Purchaser, as the case may be, and the Purchaser absolutely indemnifies adventure+ against such risk. The Purchaser should arrange insurance from that date in respect of any damage, loss or other liability at the Purchaser’s own cost.
The Purchaser will be responsible for ensuring site safety and security during installation of the goods on site, and will be liable for any loss, damage or injury caused as a result of its failure to appropriately safeguard the site and/or adhere to workplace health and safety requirements.
adventure+ does not accept responsibility for damage to drainage pipes and supply services unless the precise positions of these are identified prior to commencement of installation and if the Purchaser requires us to locate underground services on their behalf, additional charges will apply. Installation charges always assume soil free from rocks, bricks, concrete and other debris. Where an installation is delayed or cancelled because of obstructions or other circumstances beyond the control of adventure+, additional charges will apply. Removal of spoil from site is not included unless specifically shown on our proposal.
The Purchaser is responsible to notify any relevant authorities and/or obtain any approvals or permits relating to the installation of equipment (if required) and adventure+ accepts no liability for the cost of modifications made after equipment is installed made necessary by the requirements of any relevant authority.
adventure+ reserves the right to make modification without notice to the design and specification of standard units. Completed units may vary in appearance and dimensions from those displayed in our catalogues or illustrations.
It is the responsibility of the Purchaser to ensure prior to ordering that there is sufficient room for the installation and operation of the equipment allowing for fall zones in accordance with Australian Standards. Where the Purchaser requires installation without providing adequate fall zones, the Purchaser accepts full responsibility for any consequences.
adventure+ reserves the right in its sole and absolute discretion, and upon whatever conditions it imposes, to accept any goods and/or services returned by the Purchaser, and to credit the Purchaser subject to clause 16 of these conditions, and the Purchaser agrees to pay a handling and administration charge of 15% of the purchase price.
WARRANTIES AND LIABILITY
adventure+ guarantees that such goods and/or services shall be delivered reasonably free from defect or damage but is not responsible for the use or misuse of the goods and/or services by the Purchaser or any third or subsequent party.
adventure+’s liability shall be limited to, to the extent permissible by law and at adventure+’s option to either their replacement, the supply of their equivalent or of a refund of monies paid for such goods and/or services. To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these conditions or the Standard Warranty are excluded and adventure+ is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Purchaser for any increased costs or expenses, any loss of profit, revenue, business, contracts or anticipated savings, any loss or expenses resulting from a claim by a third party, and shall not include any special, indirect or consequential loss or damages of any nature whatsoever caused in the event of any delay, defect in or failure of such goods and/or services supplied.
All equipment supplied by adventure+ is warranted as per our Standard Warranty provided with the goods at the time of supply.
The Purchaser hereby releases, indemnifies and protects adventure+ from and against any loss, liability, claim, suit and/or cost suffered caused by circumstances beyond its control, but not limited to, strikes, lock-outs, labour disturbances, Acts of God, statutes, riot, wars, commotion, fire, flood, earthquake, power failure or similar event, or any consequential loss, liability, claim, damages, suit or expense suffered by the Purchaser or any other party as a result of any such event.
To the full extent permitted by law, the Purchaser will indemnify adventure+ and keep adventure+ indemnified from and against any liability and any loss or damage adventure+ may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these conditions by the Purchaser or its representatives.
This Terms and Conditions are governed by the laws from time to time in the State of Victoria and the Commonwealth of Australia, and any dispute arising therefrom shall be subject to the courts of Victoria, Australia and any courts which may hear appeals from those courts in respect to any proceedings in connection with these conditions.
adventure+ does not waive any of its legal rights in respect of these conditions, or of any goods and/or services, and shall not be bound by any waiver made by its servants or agents on any particular occasion. adventure+ expressly excludes all implied terms, conditions and warranties, and these conditions will not be varied unless adventure+ agrees in writing.
If any of these terms shall become, or are found to be unlawful or invalid, then they shall be severed from these terms and conditions, so as to preserve the remaining terms and conditions as valid and binding.
These Terms contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.