Terms and Conditions
These Terms, together with: (a) any Trade Application You completed and submitted to Curious; (b) any Guarantee(s) You completed and submitted to Curious; (c) each Quotation provided to You by Curious, whether signed or not; and (d) any special terms specific to the Quotation You have received from Curious and any other work authorisation or other forms make up the agreement (the “Agreement”) between You and Curious.
It is important that You read and understand all of the terms and conditions of the Agreement. If You have any questions please ask Curious.
“90-day Bank Bill Swap Rate” means the rate compiled from time to time by the Australian Financial Markets Association.
“Consequential Loss” means any indirect or consequential loss or damage however caused including, (a) loss of (or anticipated loss of) use, production, revenue, income, profits, business and savings or business interruption whether or not the indirect or consequential loss or damage was foreseeable or foreseen; and (b) any liability of a person or any other person, or any claim brought against the person by any other person, and any other costs or expenses in connection with the liability or claim.
“Curious” means The Curious Pty Ltd (ACN 609 966 896) of 40 Lime Street, Sydney, NSW 2000.
“Environmental Laws” means any statute, regulations or other laws made or issued by a regulatory body or government regulating the environment including without limitation the use or protection of the environment.
“Goods” means any of Curious’ equipment, plant, goods or other accessories supplied or used by You under this Agreement.
“Guarantee” means any guarantee required in the Quotation.
“GST” means goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Price” means price payable by You under this Agreement as specified in the Quotation, Curious invoices or as otherwise determined by Curious.
“Quotation” means the document provided by Curious to You which defines the Quotation and offer, including but not limited to the Services.
“Regulatory Authority” means any public authority or government agency responsible for regulating the performance of the works that are the subject of the Quotation.
“Services” means all services and Goods that Curious provide to You under this Agreement.
“Trade Account” means You have properly completed and submitted a Trade Application to Curious and Curious has approved You for an account with Curious.
“You/Your” refers to the person, firm, organisation, partnership, corporation, trust or other entity engaging Curious to provide Services to You, as named in the Trade Application or the Quotation (where You do not hold a Trade Account). The reference to “You” includes any employees, agents and contractors.
3. CURIOUS COMMITMENT
Curious agree to carry out the Services for You according to the Quotation to a reasonable standard.
4. FAIR TRADING
Nothing in this Agreement is intended to have the effect of seeking to contract out of any applicable provisions of the Competition and Consumer Act 2010 and Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
5. ACCEPTANCE AND CHARGES
5.1 Any instructions received by Curious from You whether written or verbal for the supply of the Services shall constitute the acceptance of the terms of this Agreement.
5.2 Your liability to Curious under this Agreement shall be joint and several if You constitutes more than one contracting party to this Agreement.
5.3 The terms of this Agreement override and take priority over all earlier dealings between You and Curious, the terms of any purchase order placed by You or any other conditions that You seek to incorporate into any agreement between You and Curious.
5.4 You agree that the Terms of this Agreement cannot be excluded or overridden except by the signed and written authority of one of Curious’ Directors that is clearly marked to be a variation to this Agreement.
6.1 You agree to pay the Price to Curious.
6.2 In addition to Price, You agree that You will be required to pay: (a) if You require Curious to deliver or collect Goods, the cost of delivery or collection; (b) any stamp duty or GST arising out of this Agreement; (c) if You request site instruction or training relating to the provision of the Services, the cost these services at rates agreed with Curious.
6.3 Curious reserves the right to change the Price of a Quotation in the event of any unforseen circumstances including (without limitation) any additional taxation, duty, levy, charge or other impost that is imposed on Curious’ services by a Regulatory Authority or any other person.
7.1 You must pay all fees, charges and costs that become due and payable under this Agreement in advance of the provision of the Services unless Curious agrees otherwise and if Curious agrees otherwise all fees, charges and costs that become due and payable under this Agreement shall be paid by You immediately unless otherwise agreed.
7.2 Payment of the Price that is due and payable shall occur when the entire amount of the Price that is due has been paid by You to Curious and Curious have received cleared funds in Curious’ bank account.
7.3 The value of Services performed shall include the reasonable value of authorised variations.
7.4 If You do not pay the invoice in full by the payment due date, Curious reserves the right to charge, in addition to any other costs recoverable under this Agreement: (a) interest, calculated monthly, on the total outstanding balance. The interest rate used to calculate the interest payable for the month is the 90-day Bank Bill Swap Rate published on the first business day of that month plus 2%; and (b) any costs and expenses (including any commission payable) incurred by Curious in recovering any unpaid amounts under this Agreement before and after the commencement of proceedings on a full indemnity basis.
8. YOUR OBLIGATIONS
8.1 You must not allow nor authorise any other person or entity to take possession of Curious’ Goods used to provide the Services at any time.
8.2 When Curious are carrying out the Services, You and Your employees, agents and contractors must:
(a) operate in strict accordance with all laws;
(b) ensure persons are suitably trained;
(c) wear suitable clothing and protective equipment when Curious are carrying out the Services as required or recommended by Curious;
(d) ensure that no persons are under the influence of drugs or alcohol;
(e) ensure that no persons carry prohibited or dangerous substances in or around where Curious carry out the Services; and
(f) display all safety signs and instructions (as required by law).
8.3 You will allow Curious to enter Your premises and inspect the equipment during the during the provision of Curious Services.
8.4 Delivery of the Goods shall take place when:
(a) You take possession of the Goods at Curious premises; or
(b) You take possession of the Goods at Your nominated address.
8.5 You shall make all arrangements necessary to take delivery of Goods (whether as a whole or in a number of part deliveries) whenever You are notified by Curious that it is ready for delivery. In the event that You are unable to take delivery of the Goods as arranged, Curious shall be entitled to charge a reasonable fee for Curious’ attempted delivery.
9.1 You acknowledge that Curious own any Goods used in the provision of Curious Services and in all circumstances Curious retain title to the Goods (even if You go into liquidation or become bankrupt).
9.2 You are not entitled to offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with Curious equipment hired or loaned to You in any way.
9.3 In no circumstances will any of Curious Goods be deemed to be a fixture.
10.1 You will indemnify Curious on an actual indemnity basis absolutely against all losses (including but not limited to Consequential Loss), damages, claims, demands, suits, actions, proceedings, orders or judgments whatsoever arising out of or in respect of the provision of the Services by Curious for You.
10.2 The existence of any alternative means available to Curious to obtain the payment of the moneys due or to enforce the due and punctual observance and performance of this indemnity shall not operate to vary, affect or modify all or any one or more of Your obligations or covenants expressed herein. Any extension of time, or other indulgence granted to You, any person or company by Curious does not vary, affect or modify any of Your obligations so expressed herein.
10.3 Any written account stated by Curious is prima facie evidence of the balance of the amount then appearing due to Curious by You under this indemnity.
11. RECOVERY AND LIEN
11.1 If You are in breach of the Agreement or if the Agreement has been terminated Curious may take all steps necessary (including legal action) to recover Curious’ Goods, including entering Your premises to do so. Upon receiving written notice from Curious, You expressly consent to Curious entering Your premises for the purposes of recovering Curious’ Goods.
11.2 All goods or items (without limitation) belonging to You shall be subject to a particular and general lien for moneys due in respect of any Services performed by Curious for You.
11.3 If any moneys due to Curious are not paid within one calendar month after written notice has been given in writing to You that such goods or items are detained, they may be sold by auction or otherwise at Curious’ sole discretion and at Your expense and the proceeds applied in or towards satisfaction of such particular and general lien.
12. EXCLUSION OF LIABILITY
12.1 Notwithstanding anything to contrary in the Agreement
(a) Curious will not be liable to You, or any third party, for any loss or damage (including but not limited to Consequential Loss) howsoever caused in the provision of the Services; and
(b) Curious’ liability under or in connection with the Agreement is limited an amount equal to the cost of Services actually provided.
12.2 If any event arises which is likely to lead to any dispute or claim, You must notify Curious in writing of the same within fourteen (14) days of the event. If You shall fail to comply with this provision then all Services provided by Curious shall be deemed to have been provided in accordance with this Agreement and free from any disputes or claims.
12.3 This Agreement does not seek to exclude liability for matters for which liability cannot be excluded under Australian legislation.
13. INSPECTION OF GOODS, RETURN, WARRANTY ETC.
13.1 You must inspect Goods delivered by Curious upon receipt and advise Curious of any faults or shortages within 48 hours of delivery.
13.2 If inspection of our Goods upon receipt is not possible You must note on the carrier’s receipt that inspection of the Goods has not taken place and in these circumstances you must advise Curious of any faults or shortages within 72 hours of delivery.
13.3 If Curious provide written advice to You that its Goods can be used for a specific purpose and Curious and You agree within 30 days of delivery of the Goods to You that the Goods cannot be so used, Curious will agree to refund (after deducting any freight costs) the cost of all Goods that has not been used and can be returned in the same condition that it was supplied to You.
13.4 You agree that Curious is not responsible for determining the fitness for a particular purpose of the Services (and any goods forming part of the Services) unless Curious has stated in writing in advance of a contract for the provision of Services that the Services are fit for a particular purpose. You agree that You are responsible for determining the type of Services that You require.
14. GOVERNING LAW
The Agreement is governed by the laws of the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of New South Wales.
15. ENTIRE AGREEMENT
The Agreement as defined, comprises the entire agreement between the parties. No additional terms and conditions (including any terms contained in any purchase order) apply to the provision of the Services unless they are specifically agreed in writing by the parties and they are stated to be a written variation to this Agreement.
16. ACTS OF GOD
16.1 (a) Curious will not be responsible for any delays in delivery, installation or collection of Goods or the provision of Curious’ Services due to causes beyond Curious’ control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation.
(b) Curing the Agreement no weather or natural disaster will warrant a stand down period unless expressly agreed to by both parties as defined in the Quotation.
17. TIME IS OF THE ESSENCE
Time is of the essence for all provisions of this Agreement including the payment of the Price.
18. MISCELLANEOUS PROVISIONS
The rights and obligations of each party under this Agreement may only be assigned with the prior written permission of the other party.
No Partnership or Agency
Nothing in this Agreement is intended to create a partnership between the parties. Curious shall act as an independent contractor to You and not as an agent or representative of You in performing Curious’ obligations under this Agreement. You acknowledge that neither You nor any of Your staff has any authority to bind Curious.
A waiver of any provision of or right under the Agreement must be in writing signed by the party entitled to the benefit of that provision or right and is effective only to the extent set out in the written waiver.
Any notice, demand, consent or other communication given or made under this Contract must be in writing, clearly readable, signed by the party giving or making it (or signed on behalf of that party by its authorised representative).
The Agreement may be altered only in writing signed by both parties.
If any provision contained in the Agreement is void, illegal or unenforceable, that provision is severable from the Agreement and the remainder of the Agreement has full force and effect.