Bowen Storage Terms & Conditions of Business
These terms and conditions ("Agreement") form the basis of all transactions between Bowen Storage Pty Ltd (ABN 84 659 157 105) (hereinafter referred to as "Bowen Storage”, "we", "us" or "our") and you, the customer (hereinafter referred to as "you" or "Customer"). By engaging with Bowen Storage whether by placing an order for products (“Products”) or services (“Services”), or otherwise transacting with us, you agree that this Agreement shall govern all dealings, agreements, and transactions between the parties, unless otherwise expressly agreed in writing by us.
This Agreement supersedes any and all conflicting or alternative terms and conditions provided by you. Bowen Storage reserves the right to amend or modify this Agreement at any time by providing written notice to your registered address or place of business. Any such amendments shall be deemed binding and applicable to all orders (“Orders”) or contracts entered into following the date of such notice. No provisions of this Agreement may be varied, waived, amended, or deleted unless expressly agreed in writing and signed by an authorised representative of Bowen Storage.
1. ORDERS
1.1 Orders for Products or Services provided by Bowen Storage must be placed using the Customer’s company purchase order or other written acceptance of Bowen Storage’s proposals, as agreed between the parties. Each company purchase order or written acceptance provided by the Customer constitutes a formal offer to purchase the specified Products or Services, and once accepted by Bowen Storage, it shall create a binding contract ("Contract") between the parties, subject to the terms and conditions outlined in this Agreement.
1.2 Upon receipt of a company purchase order or other written acceptance, Bowen Storage will review and accept the Order either orally or in writing. If accepted orally, Bowen Storage will provide written confirmation of the Order within 24 hours. Once accepted, the Order becomes binding and incorporates all the terms and conditions of this Agreement. Bowen Storage reserves the right to reject any Order that does not comply with the agreed terms, including specifications, timelines, or requirements mutually agreed between the parties.
1.3 Following the approval of a valid Order, Bowen Storage will commence works once all necessary parts are available. Lead times for commencing works may vary depending on the availability of materials and other project (“Project”) requirements, and Bowen Storage will notify the Customer of the estimated timeline.
1.4 Once an Order has been accepted, it cannot be cancelled or modified unless expressly agreed upon by Bowen Storage in writing. Any agreed modifications or cancellations may be subject to additional terms and fees, including but not limited to compensation for materials, Services, and administrative costs incurred by Bowen Storage up to the point of modification or cancellation, as outlined in Clause 7 (Refund and Cancellation Policy) and Clause 6 (Variation).
1.5 The Customer acknowledges and agrees that any attempt to place an Order outside the agreed-upon terms or format, such as without a valid company purchase order or mutually agreed form of written acceptance, will not be considered valid unless expressly authorised by Bowen Storage in writing.
2. SCOPE OF SERVICES
The full scope of Services to be provided under this Agreement is detailed and described in Schedule 1 which is attached hereto and incorporated by reference.
3. PERFORMANCE & DELIVERY
3.1 Performance and delivery times are provided in good faith and represent Bowen Storage’s best estimates at the time of receiving the Customer’s written Order and deposit payment. Lead times will vary based on the specific requirements of the Project, Product, or Service, and the estimated timeline will be communicated to the Customer upon processing the Order. Any updates or changes to the lead time will be promptly shared with the Customer. Bowen Storage strives to meet agreed timelines but accepts no liability for delays unless a prior written guarantee has been explicitly provided by an authorised representative.
3.2 Where Services or procedures are performed by any subcontractor (“Subcontractor”) engaged by Bowen Storage, or where Products are supplied by any of our suppliers (“Supplier”), the times quoted for performance or delivery are based on the Subcontractor’s or Supplier’s promised times of performance or delivery to Bowen Storage or upon Bowen Storage’s reasonable estimate.
3.3 The price does not include the cost of delivery of the Products unless otherwise stipulated in writing in the proposal/quotation provided by Bowen Storage. Delivery by special arrangement shall be organised by Bowen Storage, and an additional charge for such Services may be imposed. The cost of any special packaging materials required for the Order shall also be borne by the Customer, notwithstanding that such costs may have been omitted from the original proposal/quotation.
3.4 Bowen Storage shall not be liable for any delay or failure in the delivery of the Products by instalments, if such delay or failure is caused by any event or circumstance beyond our reasonable control. If we deliver any of the Products by instalments, and any one of those instalments is defective for any reason:
a) This shall not constitute a repudiation of the Contract of sale formed by these conditions; and
b) the defective instalment shall be considered a severable breach that entitles you only to compensation in respect of that instalment.
3.5 Acceptance of the Products must take place immediately upon delivery. You will be deemed to have accepted the Products once we have provided you with reasonable access to inspect the Products, and you have communicated your acceptance of the Products to us.
3.6 Any rejection of the Products or claim in respect of short delivery must be communicated to us in writing within 7 days of acceptance having occurred, failing which you will be deemed to have accepted delivery and waived any claim for shortage in respect of the delivered Products. Such notification must be sent via email or other agreed written communication methods and must clearly state the full particulars of the nonconformity.
3.7 Delivery shall take place from our premises unless otherwise specified. Bowen Storage shall not be liable to you or any person claiming through you for any loss or damage to the Products in transit caused by any event or circumstance, regardless of whether we are legally responsible for the person who caused or contributed to that loss or damage. However, we will provide you with such assistance as may be necessary to press claims against the carrier, provided that you notify us and the carriers in writing immediately upon discovery of the loss or damage on receipt of the Products. A claim for compensation must be lodged with the carrier within three (3) days of the date of receipt of the Products.
3.8 We reserve the right to make a reasonable fee for storage if delivery instructions are not provided by you within fourteen (14) days of a request for such instructions. You agree that such storage charges may accrue starting from the first day after we request for delivery instructions. Additionally, in regard to a claim for a charge for storage under this Clause, you acknowledge that fulfilment of the terms of payment are established and that we shall be entitled to issue the relevant invoice accordingly.
3.9 We are not under any obligation to accept Products returned by you and will do so only on terms to be agreed in writing in each individual case.
3.10 In the event of delays to the Project’s commencement, which are outside the control of Bowen Storage, it is the responsibility of the Customer to arrange for a suitable and safe location for the storage of the Products until the Project can proceed. This includes any required unloading of Products. During this period, any additional freight and handling costs related to the storage of Products shall be borne by the Customer. Bowen Storage is available to assist with these arrangements where possible, but any assistance provided will be subject to additional charges.
4. QUOTATIONS AND PRICE
4.1 All quotations and offers issued by Bowen Storage, as well as all Orders accepted, are subject to the strict condition that the terms of this Agreement shall apply.
4.2 Any verbal quotations provided by Bowen Storage must be confirmed in writing when an Order is placed for the supply of any Products or the performance of any Services. Written confirmation ensures that the terms agreed upon are accurately reflected and clearly communicated.
4.3 Quotations and offers issued by Bowen Storage remain valid for a period of 30 days unless otherwise specified in writing. Bowen Storage reserves the right to withdraw any quotation at any time prior to accepting an Order.
4.4 The price quoted for an Order is subject to withdrawal at any time prior to acceptance by Bowen Storage. Unless otherwise stated, all prices are exclusive of Goods and Services Tax (“GST”).
4.5 Any budgetary or indicative pricing provided by Bowen Storage, whether verbal or written, is for informational purposes only and does not constitute a binding offer or agreement. These values are estimates based on the information available at the time and are subject to change. Final pricing will be provided in a formal written quotation or proposal and may vary depending on the detailed scope of work, specifications, and other relevant factors. Bowen Storage reserves the right to amend or withdraw any indicative pricing at its sole discretion and without liability.
4.6 The Customer is responsible for paying all applicable local, state, or federal taxes or levies, including GST, unless otherwise specified in writing by Bowen Storage.
4.7 The quotations are based on the exchange rate of the Australian dollar at the time of issuance. Should the Australian dollar fluctuate by more than 1% against other relevant currencies between the date of the quotation and the date of payment, Bowen Storage reserves the right to revise the quotation and adjust the Project price accordingly. Any such adjustments will be communicated to the Customer in writing, and the revised pricing will take effect immediately upon notification.
5. TERMS OF PAYMENT
5.1 Unless otherwise negotiated between the Customer and Bowen Storage, all payments are due in net cash within fourteen (14) days from the date of the invoice. The Customer is not entitled, on any grounds, to withhold payment either wholly or in part when it becomes due. Any claim or dispute does not entitle the Customer to suspend or delay payment of the invoice.
5.2 For new clients or for Projects exceeding $5,000, a non-refundable deposit of 40% of the total project cost is required upfront. Performance or supply of Products and Services will not begin until this deposit has been received in full.
5.3 Interest will be charged on overdue payments at a rate of 4% above the rate specified in the Penalty Interest Rate Act 1983 (Victoria) until the full payment is made.
5.4 Bowen Storage reserves the right to alter the terms of Payment at any time should an unfavourable credit history be discovered prior to or during our engagement with the Customer.
5.5 In the event that the Customer fails to make payment on the due date:
a) Bowen Storage will issue a reminder notice at its sole discretion;
b) If the Customer does not pay the overdue account in full within seven (7) days of receiving the reminder notice:
i. Bowen Storage reserves the right, without prejudice to any other rights, to cancel any Orders or suspend deliveries until such payment has been received in full; and
ii. All amounts owed to Bowen Storage, including amounts for Products already supplied, will become immediately due and payable. The Customer agrees to indemnify Bowen Storage for all costs incurred as a result of the default, including legal fees, commercial agents' commissions, freight, surcharges, insurance fees, accounting costs, loss of profit, and interest.
5.6 Any sums due to Bowen Storage shall be payable immediately upon the initiation of any act or proceeding relating to the Customer’s solvency, notwithstanding Clauses 5.1 and 5.5.
5.7 Time is of the essence regarding payment for Products and Services. If no specific payment date is stated on the invoice, quotation, or Order, then payment shall be due on the date of delivery of the Products or performance of the Services.
5.8 Notwithstanding Clause 5.1, Bowen Storage may require:
a) A deposit at the time of placing the Order; and/or
b) Full payment of the Price prior to the supply of the Products and/or Services as a condition of accepting the Order.
5.9 Bowen Storage reserves the right to issue interim invoices, if stipulated in the quotation or as otherwise allowed under these Terms and Conditions. Interim invoices are payable in accordance with clause 5(a).
5.10 Bowen Storage subscribes to Creditor Watch to monitor client credit ratings. Payment terms may be adjusted or tightened for clients with poor credit ratings before engagement or the continuation of any Order.
5.11 If the Customer or any director/owner of the Customer’s company is found to possess a poor credit rating, Bowen Storage reserves the right to alter previously agreed payment terms and request full payment before proceeding with the Order.
5.12 Refunds, if granted, will be subject to a case-by-case evaluation, and may include a restocking fee or deductions for labour and materials already expended.
5.13 In the event that the Customer disputes any part of an invoice, the Customer must notify Bowen Storage in writing within seven (7) days of receipt of the invoice. The notice must specify the reasons for the dispute. The undisputed portion of the invoice shall remain payable in accordance with the payment terms. Any dispute shall be resolved promptly and in good faith.
5.14 Payment must be made via bank transfer, credit card, or another mutually agreed payment method. For Australian clients, all payments shall be made in Australian Dollars (AUD). For New Zealand clients, payments may be made in either Australian Dollars (AUD) or New Zealand Dollars (NZD), with any payments in NZD to be converted at the applicable exchange rate at the time of payment. All payments must be made in full, free from any charges or deductions. The Customer shall bear all bank charges or fees associated with the transfer of funds.
5.15 Bowen Storage reserves the right to allocate any payments received from the Customer against any outstanding invoices at its sole discretion, unless otherwise agreed in writing.
6. VARIATIONS
6.1 The Customer may request modifications or variations to the scope of Services at any stage of the Project. All such requests must be submitted to Bowen Storage either verbally or in writing for review and consideration.
6.2 Upon receiving a variation request, Bowen Storage will prepare a written variation proposal outlining the details of the requested changes, the associated costs, and any adjustments to the project timeline. This proposal will be provided to the Customer for review.
6.3 Variations will only be implemented upon the Customer’s written confirmation of acceptance of the variation proposal. Written confirmation may be provided via email or another mutually agreed method of communication.
6.4 The Customer acknowledges that any approved variations may result in changes to the total project cost, which may include, but are not limited to, adjustments for materials, labour, and administrative expenses, as specified in the variation proposal.
6.5 While Bowen Storage strives to maintain consistency in pricing, the Customer acknowledges that external factors, such as market fluctuations or unforeseen circumstances, may necessitate adjustments to the pricing provided in the variation proposal.
7. REFUND AND CANCELLATION POLICY
7.1 Refunds after the Project has commenced may be considered in exceptional circumstances, particularly where there is a significant lead time remaining. Any refund will be at Bowen Storage’s sole discretion and may be reduced to account for costs already incurred, including labour, materials, and other expenses.
7.2 If a refund is granted, it will be subject to a 20% restocking fee, unless otherwise agreed in writing by Bowen Storage.
7.3 Refunds are not available for fully installed or customised Projects. Exceptions may be made only at Bowen Storage’s sole discretion in rare circumstances.
7.4 Refunds for items that are scratched, damaged, or otherwise not in their original condition will be classified as second-hand. In such cases, their resale value will be reduced, and any refund provided will reflect this reduction, with a negotiated refund price applied accordingly.
7.5 In the event of a valid warranty claim, Bowen Storage will cover the cost of return freight. The Customer must provide reasonable notice and comply with Bowen Storage’s instructions for returning Products under warranty.
7.6 For returns resulting from a change of mind, the Customer shall be responsible for all return shipping costs, including any associated fees. Any refund issued in such cases will be subject to Bowen Storage’s approval and may be reduced by a restocking fee or other applicable charges.
7.7 We reserve the right to cancel or suspend your Order in the event that:
a) it would not, in our reasonable opinion, be safe and/or lawful to continue; and/or
b) You commit a breach of any term or condition of this Contract (other than a minor breach that causes no material harm); and/or
c) Where you commit a breach of any term or condition of this Contract and the breach is capable of remedy, you fail to remedy the breach within 14 days of a written request from us.
7.8 Where an Order is suspended or cancelled by us, you will remain liable to pay for all services rendered and all Products delivered up to and including the date of suspension or cancellation.
8. DRAWINGS, SPECIFICATIONS AND DEVIATIONS
8.1 Any deviations from the applicable specifications, drawings, and particulars of weights and dimensions that are minor in nature shall not invalidate the Agreement or form grounds for any claim against Bowen Storage.
8.2 The descriptions, illustrations and performance figures contained in catalogues, price lists and other promotional and advertising materials do not form part of the Contract of sale of the Products and Services or of the description of the Products and Services unless explicitly agreed in writing.
8.3 Bowen Storage specifications, recommendations, pricing, drawings and other particulars are specific to the quantities set out in the quotation and are subject to change if the quantities are later adjusted.
9. PROPERTY AND RISK
9.1 Title of the Products remains with Bowen Storage and shall not pass to the Customer until full payment for the Products has been received and credited to Bowen Storage’s bank account. Bowen Storage reserves the right to enter the Customer’s premises or any premises where the Products are located to repossess the Products if payment is overdue.
9.2 Bowen Storage reserves the right to affix plaques, labels, notices, or stickers (“Plaques”) to the Products indicating its continuing title to the Products, and the Customer agrees not to remove or allow removal of these Plaques until full payment has been made in accordance with Clause 5.1.
9.3 Prior to full payment, the Customer shall act as fiduciary for Bowen Storage with respect to the Products, holding them in a trust capacity. If the Products are sold to a third party, the proceeds of such sale shall be held by the Customer in trust for Bowen Storage in a separate bank account. The Customer agrees to assign to Bowen Storage any claims against the third party for the unpaid Products.
9.4 Risk in the Products shall pass to the Customer upon acceptance of the Products pursuant to Clause 3.5. The Customer is responsible for insuring against loss or damage until full payment is made and shall indemnify Bowen Storage against any loss or damage that occurs before payment.
9.5 For the avoidance of doubt, risk in the Products shall remain with Bowen Storage until acceptance occurs, pursuant to Clause 3.5.
10. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)
10.1 In this Clause:
a) Financing statement has the meaning given to it by PPSA;
b) Financing change statement has the meaning given to it by PPSA;
c) Security agreement refers to the security agreement created between the Customer and Bowen Storage by this Agreement; and
d) Security Interest has the meaning given to it by PPSA.
10.2 Upon assenting to this Agreement in writing, you acknowledge and agree that these terms:
a) constitute a security agreement for the purposes of the PPSA; and
b) Create a security interest in:
i. All Product previously supplied by Bowen Storage to the Customer (if any); and
ii. All Products that will be supplied by Bowen Storage to the Customer in the future.
10.3 You undertake to:
a) Promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all aspects) which we may reasonably require to:
i. Register a financing statement or financing change statement in relation to a security interest on the personal property securities register;
ii. Register any other document required to be registered by the PPSA; or
iii. Correct a defect in a statement or other registrable document referred to in this clause 8(c)(i).
b) Indemnify Bowen Storage, and upon demand reimburse us for all expenses incurred in registering a financing statement or financing change statement on the personal property securities register established by the PPSA or releasing any Products charged thereby;
c) Not registering a financing change statement in respect of a security interest without our prior consent;
d) Not registering, or permitting to be registered, a financing statement or a financing change statement in relation to the Products in favour of a third party without Bowen Storage’s prior written consent; and
e) Immediately advise Bowen Storage of any material change in business practices which would result in a change in the nature of proceeds derived from such assets.
10.4 Both parties agree that Section 96 and Section 125 of the PPSA do not apply to the Security Agreement created by these Terms & Conditions.
10.5 The Customer hereby waives its rights to receive notices under Sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 Unless otherwise agreed in writing, the Customer waives its right to receive a verification statement in accordance with Section 157 of the PPSA.
10.7 The Customer shall unconditionally ratify any actions taken by Bowen Storage under Clauses 10.3 and 10.4(c) to 10.5.
11. WARRANTIES & LIABILITIES
11.1 Products supplied and Services performed by us are done so based upon the instructions and information provided by you. You agree that you do not rely upon the skill and judgement of us in relation to the suitability of any of the Products for a particular purpose or application for which the Products are required by you and we are under no liability whatsoever if the Products are not suitable and fit for your intended purpose.
11.2 Where we give advice in the course of supplying the Products to you or performing the Service for you, we give all such advice in good faith and with due diligence, but we shall not be held liable at law for any such advice.
11.3 Bowen Storage makes no representation or warranty that the Products conform with all or any legislation, by-laws, or regulations including but not limited to the Occupational Health and Safety Act 1985 or Building Act 1993. It is the Customer's responsibility to ensure compliance with applicable laws, including but not limited to workplace health and safety regulations and building codes.
11.4 Processes performed or Products supplied by any Subcontractor or Supplier shall only have the benefit of such warranty as we have from such Subcontractor or Supplier and then only to the extent that such warranty is honoured by such Subcontractor or Supplier.
11.5 Except as provided in these conditions, all express and implied warranties under statute or general law as to merchantability, description, quality, suitability or fitness of the Products for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded.
11.6 We shall not be liable to you or your servants or agents for any direct, indirect, incidental or consequential loss, injury or damages of any nature howsoever caused (whether based on tort contract or otherwise) including but not limited to loss of profits, loss of Production, loss of sales opportunity or business representation, direct or indirect labour costs and overhead expenses and damage to Services or Products or in consequence of any fault or defects in the same or property or any other claim whatsoever arising directly or indirectly or in any way attributable to the supply, layout, assembly, installation or operation of the Products and Services or to the performance of or failure to perform this contract whether resulting from the negligence of us, our servants, agents or otherwise.
11.7 We make no representation or warranty that the services or Products conform with all or any legislation, by-laws or regulations including but not limited to the Occupational Health and Safety Act 1985 or Building Act 1993.
11.8 You agree to make your own enquiries regarding these matters.
11.9 You further agree that you shall be liable and indemnify and keep indemnified us against all actions, proceedings, costs, charges, claims or demands arising directly or indirectly out of or in connection with any breach by you of any legislation, by-laws or regulations including but not limited to the Occupational Health and Safety Act 1985 or Building Act 1993.
11.10 Nothing in these conditions shall be read or implied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law including the Competition & Consumer Act 2010 and which by law cannot be excluded, restricted or modified
11.11 Where the Contract relates to the supply of Products only the following additional terms and conditions apply:
a) We take no responsibility for the construction or set up of the Products; and
b) We will not be liable for and you release us from any claims in respect of faulty or defective design or specification of any Products as supplied by the Manufacturer of the Products.
11.12 We do not provide any warranty against defects whether express or implied. To the extent that any of these conditions purport to provide a warranty against defects (except as provided in Clause 9(i)) it shall be read down, if it cannot be so read down the provision (or where possible the offending word) shall be severed from this conditions without effecting the validity, legality or enforceability of the remaining provisions (or part of those provisions) of these conditions which shall continue in full force and effect.
11.13 If the Products are not manufactured by us, any warranty against defects of the manufacturer of those Products is accepted by you and is the warranty against defects given to us in respect of the Products . We agree to assign to you on request made by you the benefit of any warranty or entitlement to the Products that the manufacturer has granted to us under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
11.14 You represent and warrant to Bowen Storage that all information and representations provided by you, or any person acting on your behalf, in connection with any transaction are true, accurate, and complete. You further warrant that you have not failed to disclose any information relevant to Bowen Storage’s decision to engage in transactions with you. Additionally, you confirm that there are no current or pending court proceedings or disputes that may adversely affect your ability to fulfill your obligations under this Agreement.
12. INSURANCE
12.1 Bowen Storage maintains current and comprehensive insurance coverage to ensure full protection for both Bowen Storage and the Customer during the provision of Services. The following insurance policies are in place.
12.2 Bowen Storage holds public liability insurance with coverage up to $20,000,000. This insurance protects against claims arising from injury, death, or property damage to third parties resulting from Bowen Storage’s operations, whether on-site or off-site, during the course of work;
12.3 In compliance with all applicable laws, Bowen Storage maintains workers compensation insurance for all employees. This policy provides coverage for medical expenses, rehabilitation costs, and loss of wages in the event of workplace-related injuries or illnesses;
12.4 As required for licensed building practitioners, Bowen Storage holds commercial builders’ indemnity insurance. This policy provides protection in the event that Bowen Storage is unable to complete a project due to insolvency, death, or disappearance. The insurance covers claims related to defective or incomplete building work and ensures that the Customer is protected;
12.5 All contractors working on behalf of Bowen Storage are required to maintain appropriate and current insurances, including Public Liability and Workers Compensation. These insurances ensure that all work performed by Subcontractors is adequately covered and that there is no liability to the Customer for claims arising from Subcontractor activities; and
12.6 Bowen Storage will provide, upon request, certificates of insurance for any of the above policies to confirm coverage and validity. Any updates or renewals of the policies will be made available to the Customer upon request during the course of the Project.
13. CONSUMER GUARANTEES
13.1 Our liability for a breach of a guarantee under Div I of Part 3–2 of Schedule 2 of the Competition and Consumer Act 2010 (other than section 51, 52 or 53) for the supply of Products or Services not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited to:
a) in the case of Products, any one or more of the following:
i. the replacement of the Products or the supply of equivalent Products;
ii. the repair of the Products;
iii. the payment of the cost of replacing the Products or of acquiring equivalent Products; or
iv. the payment of the cost of having the Products repaired; or
b) in the case of Services:
i. the supplying of the Services again; or
ii. the payment of the cost of having the Services supplied again.
13.2 Our liability under s 274 of Schedule 2 of the Competition and Consumer Act 2010 for the supply of Products not of a kind ordinarily acquired for personal, domestic or household use or consumption is expressly limited to a liability to pay to the consumer an amount equal to:
a) the cost of replacing the Products;
b) the cost of obtaining equivalent Products; or
c) the cost of having the Products repaired, whichever is the lowest amount.
13.3 To the extent permissible by law, you indemnify us against any unauthorised express or implied warranty or representation under stature or general law as to merchantability, description, quality, suitability or fitness of the Products for any purpose or as to design, assembly, installation, materials or workmanship or otherwise made by any agent, employee or representative of you to a third party. For the avoidance of doubt, a warranty or representation will be unauthorised unless the warranty or representation has previously been made by us or authorised by it.
14. CONSTRUCTION WORKS
Where the Contract relates to the provision of materials plus labour to carry out construction. (“Construction Works”), the following additional terms and conditions shall apply:
14.1 You will at your own expense convey the Products and materials from the delivery point to a position within twenty metres of the place where construction is required;
14.2 You will ensure the safe custody of and minimise deterioration to the materials and or equipment whilst on site and before use and will protect the same by providing covered and secured waterproof storage accommodation;
14.3 You shall immediately prior to the date for the commencement of Construction Works ensure that the site is cleared and free from obstruction and that electricity services are available for use by us and you will further (unless we otherwise agree in writing) ensure that we are enabled to carry out the works of construction as one uninterrupted operation to be completed during normal working hours;
14.4 The Contract price is fixed on the basis that the floors upon which the Constructional Works are to be performed are level and even. Any additional costs or expenses for materials and/or labour required to shim the proposed installation due to an uneven or out of level floor surface in excess of plus or minus 10mm elevation variation over the entire floor area shall be paid by you unless otherwise agreed;
14.5 We are not responsible for the strength or structural condition of the floors or foundations upon which the Construction Works are erected or any part of the existing building or structure and make no representation and give no warranty that such floors or foundations or any part of the existing building or structure are suitable for the construction works thereon and shall not be liable for any damage or injury directly or indirectly attributable to any gradual deterioration or any defects in or any structural movement collapse subsidence or failure of the said floors or foundations or any part of the existing building or structure;
14.6 We do not undertake or investigate the conditions including structural conditions of any part of the existing buildings or structure including all walls, floors, ceilings, foundations and roofs. You warrant to us that the existing buildings or structure or any part thereof are free from all defects including any latent defects, any design or structural defects and free from all contamination resulting from any cause. We will not be liable for any loss or damages including any consequential loss which may arise in relation to the Services caused or contributed to by or as a result of a defect in the existing buildings or structure or any part thereof;
14.7 On completion of the work any surplus Products delivered by us shall remain the property of and be removed from the site by us. Until such removal you shall take reasonable precautions for the safe custody and protection of such surplus Products;
14.8 If for any reason the commencement of the Construction Works extends beyond two (2) weeks from the stipulated date, we shall be entitled to receive from you an interim payment or payments on account of the Contract price and may render an interim invoice or invoices accordingly.
14.9 Unless expressly provided for in the Contract we will not undertake or be responsible for any builder’s work or other work involving alterations to the structure of any premises at which work is to be undertaken by us.
14.10 You will serve all notices and make applications for and obtain all such licences, consents and approvals as are required by any third party including the Landlord (if any) and under any building regulations or by-laws or any legislation for the time being in force prior to the carrying out of any construction works herein and you shall be liable and indemnify and keep indemnified us against all actions, proceedings, costs, charges, claims or demands arising directly or indirectly out of or in connection with any breach of this condition.
14.11 The Contract is only between you and us. No interference to the performance of this Contract by a third party, e.g. union, will be tolerated by either party.
15. BUILDING PERMITS AND DELAYS
15.1 If a building permit or other regulatory approval is required for the completion of the Project, Bowen Storage will assist in obtaining such permits on behalf of the Customer. The Customer is responsible for providing all necessary information and cooperation required for the permit application process.
15.2 Any delays in obtaining building permits, or delays caused by changes in regulatory requirements, may impact the Project timeline. The Customer acknowledges that such delays are outside Bowen Storage's control and agrees that Bowen Storage shall not be held liable for any costs, damages, or losses incurred by the Customer as a result of permit-related delays.
15.3 In the event that the Customer fails to make any payments due under this Agreement, Bowen Storage reserves the right to withhold the building permit, or any other regulatory approval obtained for the project. Bowen Storage shall not be obligated to release or provide any such permits until all outstanding payments are made in full. The Customer acknowledges that any further project delays arising from withheld permits due to non-payment shall be the Customer’s responsibility.
15.4 This provision is incorporated to protect Bowen Storage from future instances where delays in payment result in delayed issuance of building permits or regulatory approvals. The Customer agrees that this clause shall apply to all future agreements between the Customer and Bowen Storage unless otherwise expressly agreed in writing.
15.5 The Customer acknowledges that the withholding of a building permit by Bowen Storage due to non-payment does not relieve the Customer from its obligation to pay for all Products and Services delivered and all work performed under this Agreement. The Customer remains responsible for the full payment of any outstanding invoices, regardless of whether the permit has been withheld.
15.6 If any delays in the issuance of building permits or regulatory approvals occur due to actions or omissions by the Customer, including failure to provide necessary information or cooperation, Bowen Storage reserves the right to extend the project timeline accordingly and to recover any additional costs incurred as a result of such delays. The Customer shall indemnify Bowen Storage for any costs, damages, or losses resulting from these delays.
16. SUBCONTRACTING
16.1 Bowen Storage reserves the right, at its discretion, to subcontract any part of the Products or Services to be provided under this Agreement to any third-party Subcontractor. Bowen Storage will ensure that any Subcontractor engaged is qualified and capable of performing the Services in accordance with the terms of this Agreement.
16.2 The use of Subcontractors by Bowen Storage shall not relieve Bowen Storage of its obligations or liabilities under this Agreement. Bowen Storage shall remain fully responsible for ensuring that the Products and Services provided by any Subcontractor conform to the specifications, timelines, and quality standards agreed upon with the Customer.
16.3 The Customer agrees not to directly engage or attempt to engage any Subcontractors employed by Bowen Storage during the term of this Agreement, except with Bowen Storage’s prior written consent. Any communication or instructions to Subcontractors shall be made through Bowen Storage unless otherwise agreed in writing.
16.4 The Customer acknowledges that any actions, omissions, or claims by Subcontractors engaged by Bowen Storage shall be covered by the indemnity provided by the Customer under Clause 6.1.
17. NON-SOLICITATION
17.1 The Customer agrees that during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement, the Customer shall not directly or indirectly solicit, hire, engage, or attempt to solicit, hire, or engage any employee, contractor, or Subcontractor of Bowen Storage, or induce them to terminate or modify their employment or engagement with Bowen Storage, without Bowen Storage’s prior written consent.
17.2 In the event that the Customer breaches this Clause, the Customer shall pay Bowen Storage liquidated damages equivalent to the greater of:
a) The annual compensation of the solicited employee, contractor, or Subcontractor; or
b) The recruitment and training costs incurred by Bowen Storage in replacing such individual. Bowen Storage reserves the right to seek injunctive relief in addition to damages to prevent further breaches of this clause.
17.3 The Customer further agrees not to solicit, hire, or engage any subcontractor engaged by Bowen Storage for the provision of Products or Services during the term of this Agreement or for a period of twelve (12) months after the completion of the Agreement, without Bowen Storage’s prior written consent.
17.4 The restrictions set forth in this Clause do not apply to general solicitations for employment or contractor services made through public advertisements or recruitment agencies, provided such advertisements are not specifically directed toward employees, contractors, or Subcontractors of Bowen Storage.
18. INDEMNITY
18.1 Customer Indemnity
The Customer agrees to indemnify, defend, and hold harmless Bowen Storage, its affiliates, officers, employees, agents, representatives, and Subcontractors from and against any and all claims, demands, damages, liabilities, losses, costs, expenses, and causes of action (including reasonable attorney fees) arising out of or in connection with:
a) Any breach or violation of this Agreement by the Customer, including any false representations, warranties, or failures to comply with the terms and conditions set forth herein;
b) Any act, error, or omission of the Customer, its employees, agents, officers, or contractors, including but not limited to negligence or wilful misconduct, that results in injury (including death) to any person or damage to any property;
c) Any third-party claims, actions, or proceedings related to or arising from the Customer’s use, misuse, or failure to properly operate or maintain the Products or Services provided by Bowen Storage;
d) The Customer’s failure to comply with any applicable laws, regulations, or codes, including but not limited to environmental, health, and safety laws; and
e) Any Intellectual Property infringement claims arising from the Customer’s use of the Products or Services in a manner not authorised by Bowen Storage.
18.2 Bowen Storage Indemnity
Bowen Storage agrees to indemnify, defend, and hold harmless the Customer, its affiliates, officers, employees, agents, and representatives from and against any and all claims, demands, damages, liabilities, losses, costs, expenses, and causes of action (including reasonable attorney fees) arising out of or in connection with:
a) Any gross negligence, wilful misconduct, or breach of statutory duty by Bowen Storage its employees, agents, officers, or Subcontractors in the performance of its obligations under this Agreement;
b) Any third-party claims, actions, or proceedings related to or arising from Bowen Storage’s provision of Products or Services that directly result in injury (including death) to any person or damage to any property caused by Bowen Storage’s gross negligence or wilful misconduct; and
c) Any breach of Intellectual Property rights by Bowen Storage in relation to Products or Services provided, where such breach is directly attributable to Bowen Storage’s actions or omissions.
18.3 Both the Customer and Bowen Storage agree to promptly notify the other party in writing of any claim, action, or demand for which they seek indemnification under this Agreement. The party seeking indemnification shall have the right to control the defence and settlement of such claims, provided that the indemnifying party is given reasonable notice and an opportunity to participate in the defence of the claim. Both parties agree to cooperate fully with each other in defending any claim, action, or demand arising under this Agreement.
19. INTELLECTUAL PROPERTY
19.1 Bowen Storage retains all rights, title, and interest in and to the Intellectual Property, including but not limited to copyrights, trademarks, designs, patents, and trade secrets, associated with the Products, including their labelling, packaging, and any custom modifications made by Bowen Storage. The Customer acknowledges that this Intellectual Property shall remain vested in Bowen Storage and shall not be used by the Customer without express written permission from Bowen Storage.
19.2 Where Bowen Storage has created or provided any designs, specifications, or drawings for the Customer, whether as part of a custom product design or otherwise, the copyright in those designs and drawings remains with Bowen Storage unless otherwise agreed in writing. The Customer is granted a non-transferable, non-exclusive licence to use such designs and drawings strictly for the purposes intended in connection with the agreed Products and Services, and such use shall be at Bowen Storage's discretion.
19.3 Where the Customer has supplied designs, specifications, or drawings for the manufacture or customisation of Products, the Customer warrants that such use does not infringe any third-party Intellectual Property rights. The Customer agrees to indemnify Bowen Storage against all claims, damages, costs, and expenses (including legal fees) arising from any breach of third-party Intellectual Property rights due to Bowen Storage's use of the Customer’s supplied designs or specifications.
19.4 The Customer shall not alter, remove, or obscure any proprietary markings, including but not limited to trademarks or copyright notices, affixed by Bowen Storage to the Products or any associated documentation, labelling, or packaging.
19.5 In the event of a claim, suit, or proceeding arising from the infringement or alleged infringement of any Intellectual Property rights by the Products supplied by Bowen Storage, Bowen Storage may, at its discretion, modify the Products so that they become non-infringing, procure the right for the Customer to continue using the Products, or replace the Products with non-infringing substitutes. If none of these options are reasonably available, Bowen Storage may refund the price paid for the infringing Products and terminate this Agreement with respect to those Products.
19.6 For the purposes of this Agreement, "Intellectual Property" refers to all Intellectual Property rights, including but not limited to copyrights, trademarks, patents, designs, trade secrets, know-how, inventions (whether patentable or not), databases, and all other proprietary rights and forms of protection of a similar nature, whether registered or unregistered, as well as any applications for such rights, relating to the Products, Services, designs, drawings, specifications, labelling, packaging, and any other materials provided or created by Bowen Storage or the Customer under this Agreement.
20. PRIVACY
20.1 You agree that Bowen Storage may obtain from a credit reporting body any credit eligibility information, credit information, credit reporting information, and/or credit worthiness regarding you.
20.2 You agree that any credit-related information provided to Bowen Storage may be used and retained by us for the following purposes, and for other purposes agreed between you and Bowen Storage in accordance with our Privacy Policy:
a) the provision of Services and Products;
b) marketing of Bowen Storage’s Services and/or Products, or by its agents or distributors, in relation to the Services and Products;
c) analysing, verifying, and checking your credit, payment, and/or status in relation to the provision of Services/Products;
d) processing any payment instructions, direct debit facilities, and/or credit facilities requested by you; and
e) enabling the operation of your account and/or collection of any outstanding amounts in relation to Services and Products.
20.3 Bowen Storage may provide information about you to a credit reporting body for the following purposes:
a) to obtain your credit-related information; and/or
b) to allow the credit reporting body to create or maintain a credit file containing your information.
20.4 By engaging in business with Bowen Storage, you consent to the collection, use, and disclosure of your personal information in accordance with our Privacy Policy and the Privacy Act 1988.
21. CONFIDENTIAL INFORMATION
21.1 Each party (“Receiving Party”) agrees to maintain the strict confidentiality of all technical, commercial, and proprietary information provided by the other party (“Disclosing Party”), whether received before or after the execution of this Agreement.
21.2 The Receiving Party is obligated to:
a) keep all disclosed information with the utmost diligence and confidentiality, and return such information to the Disclosing Party upon request;
b) refrain from reproducing, copying, transmitting, or disclosing the information to third parties, unless expressly authorised in writing by the Disclosing Party;
c) refrain from applying for patents or intellectual property rights using the disclosed information;
d) refrain from producing, or allowing third parties to produce, Products using the disclosed information without prior written consent from the Disclosing Party; and
e) ensure that any personnel, including employees, contractors, consultants, or Suppliers, who are given access to the confidential information are bound by the same confidentiality obligations.
21.3 The obligations under this clause do not apply to information that:
a) is already in the public domain at the time of disclosure;
b) is independently developed by the Receiving Party without reference to the confidential information; and
c) is required to be disclosed by law or by a court of competent jurisdiction.
21.4 Nothing in this clause shall prevent the Disclosing Party from seeking:
a) injunctive relief to prevent or limit any breach of confidentiality; and
b) compensation for any losses or damages resulting from a breach of this Clause
22. TERMINATION
22.1 Either party may terminate this Agreement without cause by providing the other party with thirty (30) days’ written notice. Termination by either party will not affect any accrued rights or obligations that existed before the termination date.
22.2 Bowen Storage reserves the right to terminate this Agreement with immediate effect, by providing written notice to the Customer, under the following circumstances:
a) The Customer commits a material breach of this Agreement and fails to remedy the breach within fourteen (14) days of receiving written notice specifying the breach;
b) The Customer becomes insolvent, enters into bankruptcy proceedings, or is subject to any proceeding related to insolvency;
c) Continuation of the Agreement becomes unlawful or impossible due to regulatory changes, force majeure events, or other external factors outside of Bowen Storage’s control; and
d) The Customer engages in conduct that could reasonably be considered damaging or harmful to Bowen Storage’s reputation or business interests.
22.3 The Customer may terminate this Agreement with immediate effect by providing written notice to Bowen Storage under the following circumstances:
a) Bowen Storage commits a material breach of its obligations under this Agreement and fails to remedy the breach within fourteen (14) days of receiving written notice specifying the breach; and
b) Bowen Storage becomes insolvent or is subject to bankruptcy or insolvency proceedings.
22.4 Upon termination of this Agreement, the following terms shall apply:
a) Bowen Storage shall cease providing any Products or Services under the Agreement, and the Customer shall pay for all Products delivered and Services rendered up to the date of termination;
b) Any outstanding invoices for Products delivered or Services provided prior to the date of termination shall become immediately due and payable by the Customer;
c) Bowen Storage will have no further obligation to perform any Services under this Agreement from the date of termination.
22.5 Post-Termination Obligations include:
a) Within seven (7) days of the termination date, the Customer shall return to Bowen Storage any Products, equipment, materials, secure access codes, keys, passes, or any other property belonging to Bowen Storage that was provided for the performance of this Agreement.
b) Upon termination, the Customer shall immediately cease using any confidential information or Intellectual Property belonging to Bowen Storage and return or destroy all such information. The Customer must not disclose or share any proprietary or confidential information obtained during the course of the Agreement; and
c) Following termination, the Customer agrees not to make any disparaging or harmful statements about Bowen Storage, its employees, Products, or services, whether publicly or privately.
22.6 Any proposals, designs, or Intellectual Property provided by Bowen Storage during the course of the Agreement remain the property of Bowen Storage. Upon termination, the Customer agrees not to share, disclose, or use any of Bowen Storage’s proposals, designs, or other Intellectual Property for any purpose unrelated to this Agreement.
22.7 Failure by the Customer to comply with the post-termination requirements may result in Bowen Storage pursuing legal remedies, including but not limited to:
a) Seeking injunctive relief to prevent further breaches;
b) Recovering damages caused by the Customer’s non-compliance; and
c) Reclaiming any property or materials that belong to Bowen Storage.
22.8 Any provisions of this Agreement that, by their nature, should survive termination shall remain in full force and effect after termination. This includes, but is not limited to, confidentiality obligations, indemnification, limitations of liability, and the return of Bowen Storage’s property.
23. DISPUTE RESOLUTION
23.1 If a dispute arises out of or in connection with this Agreement, including the performance, validity, or enforceability of it (“Dispute”), the parties shall follow the procedure set out in this Clause:
a) Either party shall give written notice of the Dispute to the other party, setting out its nature and full particulars ("Dispute Notice"), along with relevant Project documents. Upon service of the Dispute Notice, the representatives of both parties shall attempt in good faith to negotiate and resolve the Dispute;
b) If the parties are unable to resolve the Dispute within 30 days of service of the Dispute Notice, the parties shall attempt to settle the Dispute through mediation, following the procedures and within the timeframes set out below:
i. The parties shall jointly appoint a mediator and agree on the mediator’s remuneration within 5 business days of the service of the Dispute Notice (or such other period agreed by the parties);
ii. If the parties fail to agree on a mediator, either party may request the president (or nominee) of the Law Institute of Victoria to appoint a mediator and determine the mediator’s remuneration;
iii. The Parties shall follow the instructions of the mediator regarding the conduct of the mediation and seek to resolve the Dispute with the mediator’s assistance within 20 business days of the appointment of the mediator (or such other period agreed by the parties). If the Dispute is not resolved within this time, either party may proceed to arbitration or commence court proceedings; and
iv. The costs of the mediator shall be shared equally between the parties.
23.2 This Clause does not prevent either party from seeking urgent interlocutory relief from a court of competent jurisdiction in Australia, where such relief is necessary to protect that party’s rights or interests pending the resolution of the Dispute through negotiation, mediation, or arbitration.
24. FORCE MAJEURE
24.1 If a party (“Affected Party”) becomes unable, wholly or in part, by Force Majeure to carry out an obligation placed on it under this Agreement:
a) the Affected Party must give the other party prompt notice of reasonable particulars of the Force Majeure; and so far, as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation;
b) the relevant obligation, so far as it is affected by the Force Majeure, will be suspended for the duration of the Force Majeure; and
c) the Affected Party must use all possible diligence to overcome or remove the Force Majeure as quickly as possible.
24.2 If the Affected Party continues to be unable to perform their obligations under this Agreement due to Force Majeure for 12 months or more, then either party shall have the right to terminate this Agreement by serving 2 month’s written notice, without being liable for any damage or loss caused by the termination insofar as it arose due to Force Majeure. However, if the Force Majeure event is expected to end within a reasonable period after the two-month period, the parties may agree to extend the two-month period instead of terminating the Agreement.
24.3 For the purposes of this Agreement “Force Majeure” refers to any event or circumstance that is beyond the reasonable control of either party and which prevents or hinders that party from performing its obligations under this Agreement. Such events may include, but are not limited to, acts of God, natural disasters, severe weather conditions, war, terrorism, riots, strikes, pandemics, government actions or restrictions, and any other similar events.
25. GENERAL
25.1 Waiver
The failure of either party to insist upon strict performance of any provision in this Agreement shall not be deemed a waiver thereof or of any rights that the respective party may have and shall not, nor shall any express waiver given by either party be deemed to be acquiescence in any subsequent breach of any provision of this Agreement.
25.2 Interpretation
In the interpretation of these Terms and Conditions of business the headings are inserted for clarity of reference and do not define, limit or affect the interpretation hereof.
25.3 Severability
a) If any provision or part of a provision of this Agreement is determined to be illegal, invalid, or unenforceable, that provision or part thereof shall be deemed severed from the Agreement. The remaining provisions shall continue in full force and effect. The parties shall use reasonable efforts to negotiate a replacement provision that, to the extent permissible, reflects the original intent of the parties as closely as possible.
b) Any provision of this Agreement that contravenes any applicable state or federal legislation shall be severed without affecting the validity or enforceability of the remaining provisions.
25.4 Assignment
Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, except in the case of an assignment to an affiliate or in connection with a merger or acquisition, provided that the assigning party remains liable for the performance of its obligations under this Agreement.
25.5 Notices
Any notice or communication required or permitted under this Agreement must be in writing, legible, and in English. Notices delivered by electronic means are deemed received on the date of actual delivery.
25.6 Entire Agreement
This Agreement constitutes the entire understanding between the parties regarding its subject matter and supersedes all prior agreements or understandings. Each party acknowledges that in entering into this Agreement, they:
a) have not relied on any statement or conduct of the other party or any representative of the other party, except as expressly set forth in this Agreement; and
b) were not influenced or induced to enter into this Agreement by any statement or conduct.
25.7 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Victoria. The parties agree that any disputes arising out of or relating to this Agreement shall be interpreted in accordance with such laws.
25.8 Jurisdiction
Each party irrevocably agrees that the courts of Victoria shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation.
