Our Terms & Conditions

Overview

1.These Terms and Conditions apply (unless otherwise previously agreed in writing) to the supply of Goods/Services by Auswide Landscape Solutions Pty Ltd to a Client from time to time. Any supply of Goods/services by Auswide Landscape Solutions Pty Ltd to the Client 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 Auswide Landscape Solutions Pty Ltd and any such supply does not give rise to a new or separate agreement.

2. In these Terms and Conditions Auswide Landscape Solutions Pty Ltd means Auswide Landscape Solutions and its related entities.

Client Obligations

3. The Client or playground operator is responsible to ensure that any yards designed and built are suitable for the intended purpose, and that 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 Client who has a duty of care to disclose any relevant matter prior to ordering and the Client will make no claim whatever against Auswide Landscape Solutions Pty Ltd if failing to do so.

4. It is the responsibility of the Client to ensure that the equipment is in safe working order before allowing it to be used. The Client 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.

5. 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 Client 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. The client indemnifies Auswide Landscape Solutions Pty Ltd against any liability for personal injury or death of a person, or damage to property, arising out of, or in connection with, the use of good and/or services.

6. It is the responsibility of the Client 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 under surfacing in accordance with Australian Standards.

Quotations & Orders

7. Quoted prices are only valid if in writing and expire two weeks from the date of quotation. Auswide Landscape Solutions Pty Ltd 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.

8. An order is binding on Auswide Landscape Solutions Pty Ltd when Auswide Landscape Solutions Pty Ltd receives an order to supply goods and/or services and either issue a written acknowledgement to the Client or dispatches goods/services and/or provides services pursuant to that order. No order is binding on Auswide Landscape Solutions Pty Ltd until accepted by it.

9. An acceptance of the order by Auswide Landscape Solutions Pty Ltd is then to be an acceptance of these Terms and Conditions by the Client and these Terms and conditions will override any conditions contained in the Client’s order.

10. Auswide Landscape Solutions Pty Ltd 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/services to the Customer.

11. Auswide Landscape Solutions Pty Ltd reserves the right to cancel any such order should the Client be in any breach of these conditions with respect to any such prior or subsequent order, and the Client shall indemnify Auswide Landscape Solutions Pty Ltd against any loss or damages caused by such cancellation.

12. An order which has been accepted in whole or in part by Auswide Landscape Solutions Pty Ltd cannot be cancelled by the Client without obtaining the prior written approval of Auswide Landscape Solutions Pty Ltd, which it may refuse in its absolute discretion.

13. In the absence of a written order for the supply of goods/services and/or services, the Client agrees that the invoice issued by Auswide Landscape Solutions Pty Ltd accurately replicates and represents the order as placed by the Client.

Payments

14a. A 30% deposit will need to be paid before work commences, also stage payments will need to be paid as stages of works are completed and the Balance paid on completion.

14.b The price and the terms of trade are such as quoted by Auswide Landscape Solutions Pty Ltd, or as otherwise agreed to by Auswide Landscape Solutions Pty Ltd. All prices quoted are GST exclusive unless otherwise stated and are subject to GST where applicable.

15. 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.)

16. In the event that payment of an invoice is not made in accordance with clause 15 of these conditions, the Client shall forfeit the right to any claim against Auswide Landscape Solutions Pty Ltd whatsoever and shall grant an unconditional and irrevocable indemnity to Auswide Landscape Solutions Pty Ltd against any such claim, and shall pay interest to Auswide Landscape Solutions Pty Ltd on any outstanding debts at the rate of twelve per cent (12%) per annum compounded until the date payment is received by The Trustee for Auswide Landscape Solutions Unit Trust.

Title To The Goods/Services

17. Title to ownership of any goods and/or services is retained by Auswide Landscape Solutions Pty Ltd until payment in full for the goods and/or services and all sums due and owing by the Client to Auswide Landscape Solutions Pty Ltd on any account has been made.

18. Prior to the use or resale of any goods/services, the Client shall store and maintain them in such original condition as when they departed from Auswide Landscape Solutions Pty Ltd. If the goods/services are resold or used in the manufacture of other goods and/or services and/or structures, the Client shall act as fiduciary in the recovery of payment for the goods and/or services, segregating such proceeds for the account of Auswide Landscape Solutions Pty Ltd until payment is affected in full, and the goods/services and services are always at the risk of the Client. The Client assigned to Auswide Landscape Solutions Pty Ltd any claims or rights to payments from the Client’s debtors in order to enable Auswide Landscape Solutions Pty Ltd to make full recovery of any monies owed in respect of such goods and/or services supplied.

19. In the event of the Client failing to pay for such goods and/or services in accordance with clause 15 of these conditions or if the Client 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 Client payable to Auswide Landscape Solutions Pty Ltd is dishonoured, the Client irrevocably grants Auswide Landscape Solutions Pty Ltd and any of its agents, the unconditional authority and consent to enter the Client’s premises or any other location where the goods/services may be held, stored or installed for the express purpose of retrieving them and The Trustee for Auswide Landscape Solutions Unit Trust may resell any goods/services recovered, or where the goods/services 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 Auswide Landscape Solutions Pty Ltd compensation to the Client whatsoever, and the Client shall indemnify Auswide Landscape Solutions Pty Ltd forever against any such claims brought by any other party. PERSONAL PROPERTY SECURITIES ACT 2009 (Cth)

20. Auswide Landscape Solutions Pty Ltd and the Client acknowledge that these conditions constitute a Security Agreement and entitle Auswide Landscape Solutions Pty Ltd to claim a Purchase Money Security Interest in favour of Auswide Landscape Solutions Pty Ltd over the Collateral supplied or to be supplied to the Client as Guarantor pursuant to these conditions. The goods/services supplied or to be supplied under these conditions fall within the PPSA classification of” Other Goods/services” acquired by the Client pursuant to these conditions. The Client is hereby advised that registration in respect of all goods/services supplied will be made on the Personal Property Securities Register and agrees to waive any obligation for Auswide Landscape Solutions Pty Ltd 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 Client agrees to indemnify Auswide Landscape Solutions Pty Ltd 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 Auswide Landscape Solutions Pty Ltd and enforcement or attempted enforcement of any Security Interest granted to Auswide Landscape Solutions Pty Ltd by the Client. Defined terms in this clause have the same meaning as given to them in the PPSA

Delivery & Installation

21. All risk in and for such goods and/or services shall pass to the Client either upon delivery to such location nominated or agreed to by the Client, or upon collection by the Client, or any servant, agent, courier or carrier of the Client, as the case may be, and the Client absolutely indemnifies Auswide Landscape Solutions Pty Ltd against such risk. The Client should arrange insurance from that date in respect of any damage, loss or other liability at the Client’s own cost.

22. The Client will be responsible for ensuring site safety and security during installation of the goods/services 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.

23. Auswide Landscape Solutions Pty Ltd 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 Client 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 Auswide Landscape Solutions Pty Ltd, additional charges will apply. Removal of spoil from site is not included unless specifically shown on our proposal.

24. The Client is responsible to notify any relevant authorities and/or obtain any approvals or permits relating to the installation of equipment (if required) and Auswide Landscape Solutions Pty Ltd accepts no liability for the cost of modifications made after equipment is installed made necessary by the requirements of any relevant authority.

25. Auswide Landscape Solutions Pty Ltd 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.

26. It is the responsibility of the Client 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 Client requires installation without providing adequate fall zones, the Client accepts full responsibility for any consequences.

27. Auswide Landscape Solutions Pty Ltd reserves the right in its sole and absolute discretion, and upon whatever conditions imposed, to accept any goods and/or services returned by the Client, and to credit the Client subject to clause 16 of these conditions, and the Client agrees to pay a handling and administration charge of 15% of the purchase price.

Warranties & Liability

28. Auswide Landscape Solutions Pty Ltd 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 Client or any third or subsequent party.

29. Auswide Landscape Solutions Pty Ltd.’s liability shall be limited to, the extent permissible by law and at Auswide Landscape Solutions Pty Ltd.’s option to either their replacement, the supply of their equivalent or of a refund of monies paid for such goods/services 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 Auswide Landscape Solutions Pty Ltd is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Client 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.

30. All equipment supplied by Auswide Landscape Solutions Pty Ltd is warranted as per our Standard Warranty provided with the goods/services at the time of supply.

General

31. The Client hereby releases, indemnifies and protects The Trustee for Auswide Landscape Solutions Unit Trust 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 Client or any other party as a result of any such event.

32. To the full extent permitted by law, the Client will indemnify Auswide Landscape Solutions Pty Ltd and keep Auswide Landscape Solutions Pty Ltd indemnified from and against any liability and any loss or damage Auswide Landscape Solutions Pty Ltd 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 Client or its representatives.

33. 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.

34. Auswide Landscape Solutions Pty Ltd 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. Auswide Landscape Solutions Ptd Ltd expressly excludes all implied terms, conditions and warranties, and these conditions will not be varied unless Auswide Landscape Solutions Pty Ltd agrees in writing.

35. 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.

36. 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.

37. The Client accepts and acknowledges that shrubs, plants, natural turf and any other flora, foliage or vegetation supplied by the Contractor are organic in nature and require care and maintenance. The Contractor reserves the right to not accept liability for the plants where such plants may have become affected or died due to the Client’s failure to properly maintain the plants and/or to follow any instructions or guidelines provided by the Contractor in regard to the proper care of the plants (including but not limited to, adequate watering of the plants).

38. During first 13 weeks of Centre being operational, Auswide Landscape Solutions personnel can be contacted to attend the site to perform an overall safety inspection of all works performed by our company. The Client must notify Auswide Landscape Solutions of any alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to inspect the Materials or to review the Works provided.

Variations

39. At any time prior to Substantial Completion, the Client may give a written direction to conduct a Variation.

40. If the Client proposes a Variation, the Client may give a written request for advice on:

(a) the feasibility of the proposed Variation.
(b) if the proposed Variation would increase any part of, or add to, the Works, the scope of work necessary to conduct and complete the proposed Variation.
(c) the effect of the proposed Variation on the Date for Substantial Completion, if any; and
(d) the adjustment to the Price if Auswide Landscape Solutions are prepared to conduct and complete the proposed Variation.

41. Auswide Landscape Solutions is not required to carry out a Variation unless a written direction to conduct the Variation is provided by which a quote will be issued and agreed on before Variation works are undertaken.