STANDARD TERMS OF ENGAGEMENT

These terms and conditions sets out the terms under which Aero Motion Australia Pty Ltd ABN 66 6058 12459 (Aero Motion, or “we, us”) provides products or services to you (being the individual, company or legal person purchasing such goods or services) (the Client, or “you”).

1.                  DISCLAIMER

The technical equipment and services described on our website and supplied to you as products and/or services are designed and intended for technical applications by experts having a thorough knowledge of all skills required for its proper use. All descriptions and illustrations are not instructions but are intended solely for your convenience. It is your responsibility to obtain thorough, qualified instruction in the proper application of any products and/or services, including all safety and redundancy system precautions.

A significant amount of care has been taken to ensure that all product and service information is accurate. However, no responsibility is taken for any errors that may have appeared.

2.                 QUOTES

(a)                Based on our communications with you, we will prepare a draft quotation, estimate and/or product and project proposal for you, written or otherwise agreed (Quote). Without limiting or otherwise affecting clause 1(b), you agree that signing a Quote will constitute your acceptance of that Quote and form a binding contract between us.

(b)                You will be taken to have accepted these terms and the Quote if you sign them or otherwise indicate your acceptance of them, or if you order, accept or pay for any products or services provided by Aero Motion, or continue to accept products or services from us, after receiving or becoming aware of these terms.

(c)                In the event of any inconsistency between these terms and any Quote, the clauses of these terms will prevail to the extent of such inconsistency (unless otherwise agreed in writing).

(d)                In accordance with a Quote, we will provide you with the products set out in the Quote (Products) and/or the services set out in the Quote (Services) in exchange for your payment of the total price for those Products and/or Services (Order Price).

(e)                You are responsible for confirming that your Quote accurately specifies (if applicable):

(i)                 the quantity and specifications of the Products and/or Services required;

(ii)                the agreed Order Price, other rates and any installation; and

(iii)               any exclusions or special conditions.

(f)                You acknowledge and agree that:

(i)                 the quoted price may change depending on actual Products and/or Services provided;

(ii)                the quoted price is only valid for the time period set out in the Quote or otherwise for 7 days;

(iii)               by accepting a Quote, you are committing to paying the total amount payable under these terms and conditions in accordance with clause 4 including any variations or additional costs necessary to complete your order; and

(iv)               Aero Motion are only responsible for providing Services and/or Products set out in a Quote or otherwise agreed in writing and are subject to any exclusions or conditions set out in the Quote or otherwise agreed in writing.

3.                  PRODUCTS AND SERVICES

(a)                For the purposes of this agreement the terms Products and Services are interchangeable (and so are goods/products) where applicable.

(b)                If the Quote states that Products are ordered, Aero Motion will provide the Products set out in the Quote at the times and to the specifications set out in the Quote or as otherwise agreed with you. 

(c)                If the Quote states that Services applies, Aero Motion will perform the Services set out in the Quote at the times set out in the Quote or as otherwise agreed with you. 

(d)                (Quoted Hours) You acknowledge and agree that any quoted hours are our best estimate of the work required based on the information you have provided to us. If additional hours are required to properly perform the Services, we reserve the right to charge for additional hours at the quoted hourly rate.

(e)                (Additional Services) You must pay additional service fees for additional services requested by you which are outside the scope of the Services in the Quote. You must provide in writing within a reasonable time, confirmation of a variation order. We reserve the right to not commence any additional work until a price for relevant additional work has been made in writing. We reserve the right to any additional work.

(f)                Unless otherwise agreed, Aero Motion may, in its discretion:

(i)                 not commence work on any Services until the Client has paid any Order Price or deposit payable in respect of such Services;

(ii)                withhold delivery of Services until the Client:

A.                 has paid an invoice in respect of such Services;

B.                 has provided all required information and documentation to Aero Motion required for Aero Motion to provide the Services; and

C.                has signed a Quote or otherwise agreed in writing to the agreed Services;

4.                 CLIENT OBLIGATIONS

4.1               PROVIDE INFORMATION AND LIAISON

(a)                The Client must provide Aero Motion with any plans, photos, schematics or other content that will help us develop an estimate in our Quote for you.

(b)                The Client must provide Aero Motion with all documentation, information (including relevant briefs, artwork, electronic resources and any background information) and assistance reasonably required for Aero Motion to perform the Services.

(c)                The Client agrees to liaise with Aero Motion as it reasonably requests for the purpose of enabling Aero Motion to provide the Services.

(d)                Aero Motion will not accept any liability in connection with the information provided by you. All information you provide will be taken to be accurate, correct and true.

(e)                Aero Motion will not accept any liability for delay in, or failure to provide Products and/or Services as a result of delays in the Client providing information or miscommunicated or incomplete information.

4.2              DESIGN PHASE

If there is a design phase for a Product and/or Services then:

(a)               The design phase will outline the technical aspects of a project and any Products and/or Services.

(b)               It is the sole responsibility of the Client to make decisions related to the project and acceptance that the Client is solely responsible where misinformation or the exclusion of critical project information occurs.

(c)                Once a design has been accepted by the Client in writing only then can work begin to fabricate, supply or provide Services and Products based on the Client’s selection.

(d)              The client indemnifies Aero Motion from any damages as a result from delays in Services and from any damages as a result of miscommunicated or incomplete project information.

5.                 PAYMENT

(a)                (Payment obligations) You must pay the Order Price and all other amounts payable in accordance with these terms and conditions in the amounts and at the times set out in the Quote, by invoice or otherwise agreed.

(b)                (Payment Due Date) Unless otherwise agreed all payments are due 14 days after you receive an invoice.

(c)                (New Clients) For new Clients full payment is required prior to Services commencing or Products being dispatched, unless agreed otherwise in writing. Where agreed in writing new Clients may be required to pay a 50% deposit on any order with the balance owing to be paid upon receipt of an invoice and prior to any Products being dispatched and/or Services provided.

(d)                (Service Variations) Aero Motion reserves the right to vary the Order Price in a Quote if additional work is required to provide the Products and/or Services.

(e)                (GST) Unless otherwise indicated, price amounts stated by Aero Motion do not include GST. In relation to any GST payable for a taxable supply by Aero Motion, you must pay the GST subject to Aero Motion providing a tax invoice.

(f)                (Card surcharges) Aero Motion reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).

(g)                (International bank transfer fees) All amounts are in AUD (Australian Dollars) and you are responsible for any international bank transfer fees additional to the total amount (see your bank for fee details).

(h)                (Termination) Aero Motion may terminate these terms and any Quote by written notice or otherwise to you, if you are in breach of any obligation to pay money and you fail to pay the money within 30 days of the payment due date.

6.                 LATE PAYMENT AND DEBT RECOVERY

(a)                If you do not pay an amount due under this agreement on or before the date that it is due:

(a)                you must pay Aero Motion interest at the rate of 5% per month on the amount due, calculated on a daily basis;

(b)                Aero Motion may seek to recover the amount due by referring the matter to debt collectors;

(c)                you must reimburse Aero Motion for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under these terms; and

(d)                you authorise Aero Motion, its employees and agents to enter any premises occupied by you or any other place where Products are located and use reasonable force to retake possession of the Products without liability for trespass or any reasonable damage.

7.                 RETURNS AND REFUNDS

(a)                (Change of mind return) Please choose carefully and provide accurate Product descriptions and specifications. We do not accept returns for change of mind unless otherwise agreed in writing.

(b)                (Error in the specifications) We do not accept returns for any errors or miscommunication in any specifications set out in the Quote. It is your responsibility to ensure such details are correct.

8.                 DELIVERY, TITLE AND RISK

(a)                Until the price of Products is paid in full, title in those Products is retained by Aero Motion.

(b)                Risk in the Products will pass on delivery to the Client. Delivery may not be refused by the Client.

(c)                If the Client does not pay for any Products on the due date for payment, the Client authorises Aero Motion, its employees and agents to enter any premises occupied by the Client or any other place where the Products are located and use reasonable force to retake possession of the Products without liability for trespass or damage.

(d)                Aero Motion may at its option keep or resell Products retaken from the Client.

9.                 THIRD PARTY GOODS AND SERVICES

(a)               Any Service that requires Aero Motion to acquire goods and services supplied by a third party on behalf of the Client may be subject to the terms & conditions of that third party (Third Party Terms), including 'no refund' policies.

(b)               The Client agrees to familiarise itself with any Third Party Terms applicable to any such goods and services and, by instructing Aero Motion to acquire the goods or services on the Client’s behalf, the Client will be taken to have agreed to such Third Party Terms.

10.               CONFIDENTIALITY

(a)               Except as contemplated by this agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to use or disclose to any person any confidential information disclosed to it by the other party without its prior written consent.

(b)               This clause 9 does not apply to:

(i)                 information which is generally available to the public (other than as a result of a breach of this agreement or another obligation of confidence);

(ii)                information required to be disclosed by any law; or

(iii)               information disclosed by Aero Motion to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this agreement.

11.               ACCREDITATIONS

Unless otherwise agreed in writing:

(a)               all displays or publications of any Products provided to the Client as part of the Services must, if requested by Aero Motion, bear an accreditation and/or a copyright notice including Aero Motion's name in the form, size and location as directed by Aero Motion; and

(b)               Aero Motion retains the right to describe the Services and reproduce, publish and display any Products/Services in Aero Motion's portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Services and/or Products in connection with such uses.

12.               INTELLECTUAL PROPERTY

12.1            CLIENT CONTENT

(a)               The Client grants to Aero Motion (and its subcontractors, employees and agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any part of the Services.

(b)               The Client:

(i)                 warrants that Aero Motion's use of Client Content as contemplated by this agreement will not infringe any third-party Intellectual Property Rights; and

(ii)                will indemnify Aero Motion from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.

12.2            DEVELOPED IP

All Developed IP will be solely and exclusively owned by Aero Motion.

12.3            AERO MOTION IP

(a)               Aero Motion grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Aero Motion IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Products.

(b)               Unless otherwise agreed in writing by Aero Motion or in this clause 9.3, the Client will not acquire Intellectual Property Rights in any Aero Motion IP under this agreement or as part of receiving the Services.

12.4            DEFINITIONS

For the purposes of this clause 9:

(a)               "Client Content" means any Material supplied by the Client to Aero Motion under or in connection with this agreement, including any Intellectual Property Rights attaching to that Material.

(b)               "Developed IP" means the Products and any other Material produced by Aero Motion in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material or Products.

(c)                "Intellectual Property Rights" means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the start date set out in a Client Form, whether registered or unregistered.

(d)               "Aero Motion IP" means all Material owned or licensed by Aero Motion that is not Developed IP and any Intellectual Property Rights attaching to that Material.

(e)               "Material" means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.

13.               PRIVACY

(a)                We will collect and hold your personal information in accordance with our Privacy Policy. We will keep all personal information confidential unless required to be provided by law.

(b)                You agree to be bound by our Privacy Policy, which can be found here.

14.              LIABILITY

(a)                (Limitation of liability) To the maximum extent permitted by applicable law, Aero Motion excludes completely all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to these terms or any products, goods or services provided by Aero Motion.

(b)                Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee into these terms which may not lawfully be excluded, then to the maximum extent permitted by applicable law, Aero Motion’s liability for breach of that non-excludable condition, warranty or guarantee will, at Aero Motion option, be limited to:

(i)                 in the case of goods, their replacement or the supply of equivalent goods or their repair; and

(ii)                in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

(c)                (Indemnity) You indemnify Aero Motion and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from your or your representatives’ use of any products, goods or services provided by Aero Motion, including the Products and Services.

(d)                (Consequential loss) To the maximum extent permitted under applicable law, under no circumstances will Aero Motion be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with these terms or any products, goods or services provided by Aero Motion, including the Products and Services.

15.              TERMINATION

(a)                This agreement will terminate by written notice if:

(i)                 mutually agreed in writing between the parties;

(ii)                either party has committed a material breach of this agreement and has failed to remedy the breach within 30 days after receiving notice from the other party.

(b)                Upon termination of this agreement, you must promptly pay our standard fees in relation to work already performed and any associated expenses with terminating this agreement.

(c)                We reserve the right to recover any losses, damages or expenses incurred prior to termination or as a result of termination.

(d)                If you breach this contract Aero Motion shall be entitled to retain any and all information and documentation. Where you breach the contract, cancel your order, do not pay any fees due or otherwise do not go ahead with the Services, you must return all documentation to Aero Motion immediately.

16.              INSURANCE

Aero Motion and its agents are covered by professional indemnity insurance and can provide a certificate of currency on request.

17.              GENERAL

(a)                (Governing Law) This agreement is governed by the law applying in New South Wales, Australia.

(b)                (Jurisdiction) Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

(c)                (Notice) Any notice given under these terms must be in writing and addressed to us at the details set out in the Quote or otherwise provided to you when you engage us. A notice may be sent by standard post or email and will be regarded as given and received 48 hours in the case of post, or 24 hours after the email was sent.

(d)                (Disputes) Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these terms without first meeting with the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this clause).

(e)                (Waiver) No party to these terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

(f)                (Further Acts and Documents) Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to these terms.

(g)                (Assignment) A party cannot assign, novate or otherwise transfer any of its rights or obligations under these terms without the prior consent of each other party.

(h)                (Subcontracting) Aero Motion may subcontract its obligations under these terms without obtaining your prior approval.

(i)                 (Entire Agreement) These terms, and any accepted order or Quote under these terms, embody the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement. To the extent of any inconsistency between these terms and the terms of an accepted order, these terms prevail (unless otherwise agreed in writing).

(j)                 (Interpretation) In these Terms, the following rules of interpretation apply:

(i)                 (singular and plural) words in the singular include the plural (and vice versa);

(ii)                (gender) words indicating a gender includes the corresponding words of any other gender;

(iii)               (currency) a reference to "$" or "dollar" is to Australian currency;

(iv)               (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(v)                (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(vi)               (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(vii)              (these Terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexe is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annex to or of these Terms, and a reference to these Terms includes all schedules, exhibits, attachments and annexures to it;

(viii)             (document) a reference to a document (including these Terms) is to that document as varied, novated, ratified or replaced from time to time;

(ix)               (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(x)                (includes) the word "includes" and similar words in any form is not a word of limitation; and

(xi)               (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.