Terms & Conditions

1. Introduction

The Contract between Design to Production Pty Ltd (D2P, we, us, our) and the Client sets out the terms on which D2P will provide the Goods and/or Services to the Client.
The Contract will commence on the date a Quotation or Purchase Order is accepted in writing by D2P and will continue until the order is fulfilled or the Contract is terminated in accordance with these terms and conditions (whichever occurs first).
To the extent of any inconsistency, the Contract elements will prevail in the following order: (i) Purchase Order, (ii) Quotation and (iii) these Terms and Conditions.

2. Fees & Payments

The Client agrees to pay the Fees for the Goods and Services it orders, including any applicable GST. All prices are in Australian dollars unless stated otherwise.
Fees and payment terms will be set out in the relevant Purchase Order and may include payment schedules. Unless the Purchase Order states otherwise, Client will pay D2P within 7 days of receipt of a valid tax invoice.
If the Client disputes an invoice in whole or in part, then the Client must pay the undisputed portion in accordance with this Contract and must within 5 days of receipt of the invoice, notify D2P in writing of the disputed sum and the basis of the dispute. All disputes will be dealt with in accordance with the procedure set out in clause 13 (Dispute Resolution).

3. Delivery & Inspection

D2P will deliver the Goods and supply the Services in accordance with the Contract.
Risk in any Goods passes to the Client upon delivery by D2P or collection by Client (as the case may be). Legal and beneficial property in the Goods shall pass from D2P to Client after all Fees have been received by D2P.
Promptly upon the receipt of the Goods, the Client shall examine them to determine whether any item(s) included in the delivery are in short supply, defective or damaged. Within 48 hours of receipt of the Goods, the Client must notify D2P in writing of any shortages, defects or damage (Rejected Goods), and provide evidence of such. DTP will do all things commercially reasonable to replace or repair as soon as possible any Rejected Goods. The Client is not obliged to pay for Rejected Goods unless they are repaired or replaced (as the case may be). If the Goods are unable to be repaired or replaced, D2P must refund to Client any amount paid by Client in respect of such Goods.

4. Intellectual Property Rights

Each party continues to own its Background IP.
Except as set out in a signed Purchase Order, D2P will continue to own all Contract IP. Client acknowledges that its purchase and use of the Goods and Services does not grant or transfer to it any rights, titles or interest in relation to D2P Background IP or Contract IP except as set out in the Contract.
Provided Client pays all applicable Fees to D2P and otherwise complies with its obligations under the Contract, D2P grants the Client on a confidential basis, a non-exclusive, non-transferable, royalty-free, licence to use D2P Background IP and Contract IP as is relevant and necessary (as determined by D2P acting reasonably), for the purpose of Client receiving and enjoying the full benefit of the Goods and Services. D2P warrants that it has the right to grant this licence.
Client grants D2P on a confidential basis, a non-exclusive, non-transferable royalty-free licence to use, exercise, develop and modify such of Client’s Background IP as is necessary for the purpose of D2P delivering the Goods and performing the Services pursuant to the Contract. Client warrants that it has the right to grant this licence.
Each party warrants that its Background IP and the other party’s use of its Background IP in accordance with this Contract as the case may be will not infringe the Intellectual Property rights of any person.

5. Confidential Information

A receiving party will keep confidential any information provided by a disclosing party in connection with this Contract and must not use, exploit or disclose the Confidential Information other than for the purposes for which it has been provided under this Agreement. For the avoidance of doubt, the terms of this Contract are considered confidential information.

6. Obligations Of The Parties

D2P must ensure that all Goods and Services supplied to the Client are supplied and provided (as the case may be) (a) with all due care and skill; (b) in a proper and efficient manner; (c) in accordance any specifications contained in the Contract.
D2P will ensure it has the following insurances (and provide Client with a copy of the certificate(s) of currency if Client asks): public and product liability insurance for a minimum amount of at least $20 million for each occurrence; workers’ compensation insurance as required by law; and if supplying Services, professional indemnity insurance for a minimum amount of $10 million for each occurrence.
The Client agrees that it will provide D2P with all assistance necessary to permit D2P to perform its obligations under the Contract, including but not limited to, providing access, during business hours, or any other time agreed in writing between the parties, to the Client’s premises or any other premises where Works are to be carried out.
Both parties agree to:
- cooperate fully and act in good faith towards each other;
- provide each other with all information and assistance reasonably required in a timely manner in order to enable them to fulfil their obligations under this Contract; and
- comply with the terms of this Contract and all applicable laws.

7. Subcontractors

The Client agrees that D2P may, in its sole discretion, engage subcontractors to perform part or all of the Services. D2P will use reasonable endeavours to ensure subcontractors are suitably qualified and able to perform the Works in a proper and workmanlike manner. The Client agrees that during the term of the Contract, it may not, directly or indirectly, approach the subcontractor to perform part or all of the Services or any Works which are the same as or substantially similar to the Services, for the Client, or on behalf of the Client for any third party, without the prior written consent of D2P.

8. Force Majeure

D2P shall not be liable for any failure to make available any Goods or Services or any delay in connection with the delivery of the Goods and Services where such failure or delay is caused by events beyond D2P’s reasonable control, including without limitation industrial disputes, strikes, lockouts, acts of god, acts or threats of terrorism or war (“Force Majeure”) provided such failure or delay could not have been prevented by reasonable precautions or could not have reasonably been foreseen or circumvented by D2P.

9. Termination

Either party may terminate this Agreement upon 7 days’ written notice to the other party if:
- a party fails to perform or observe any of the terms of this Agreement and fail to remedy such breach within 14 days after receiving a notice from the non-defaulting party;
- a party breaches a material obligation in this Contract which is not capable of remedy;
- a party ceases to carry on business, becomes insolvent, make an assignment for the benefit of their creditors, or they have a receiver, receiver and manager, administrator, investigator or liquidator appointed.
If this Agreement is terminated in accordance with this clause, D2P must make available to Client all Goods that Client has ordered within D2P’s control or possession and Client must pay D2P for such Goods and or Services rendered up to and including the termination date.
Accrued rights or remedies of either party are not affected by termination of this Agreement.

10. Client Warranties

The Client warrants to D2P that:

The Client is authorised to occupy any premises upon which Works will be carried out, or otherwise has authority from the occupier or owner of the premises for Works to be carried out.
Any premises upon which the Works are to be carried out will be safe for D2P and/or its subcontractors, including but not limited to, the premises being compliant with all relevant state and federal occupational health and safety laws; and
D2P and/or its subcontractors will have unobstructed access to any areas of premises upon which the Works will be performed in order to permit the Works to be performed.

11. Indemnities:

The Client is liable for and agrees to indemnify, defend and hold D2P harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from: (i) any breach of the Contract including breach of the warranties in clause 10; (iii) any damage to or misuse of the Goods or Services after delivery; (iv) or breach of any laws or regulations; from or by Client its employees, Contractors or agents.

12. Disclaimer & Limitation Of Liability:

Except as expressly set out in the Contract, all warranties, representations or agreements, whether oral, by conduct, or in writing, and whether express or implied, whether by operation of law, statutory or otherwise, including any implied warranties of merchantability or fitness for purpose, are hereby expressly excluded by D2P to the maximum extent permitted by law.
Certain provisions of the Australian Consumer Law (ACL) and other statutes, rules and regulations may imply certain non-excludable terms, warranties or conditions for consumers (Non-Excludable Conditions). To the extent the Client is a consumer and such conditions cannot be excluded, they are included in this Contract. Where D2P is permitted to limit its liability for a breach of a Non-Excludable Condition, D2P liability will be limited (at its option) to (a) resupplying equivalent Goods and/or Services to the Client or (b) paying the Client the cost of having the Goods and/or Services resupplied to it or (c) refunding the amount paid to D2P for the Goods and or Services.
To the maximum extent permitted by law, in no event will D2P be liable for any indirect, incidental, special, consequential or exemplary damages including but not limited to damages for loss of profits, use, goodwill, data or other intangible losses, cost of procurement of substitute Goods or Services, or any other special, indirect, or consequential damages (even if D2P has been advised of the possibility of such damages) resulting from the Goods and/or Services or any other matter relating to the Goods and /or Services or these terms.
Each party’s maximum aggregate liability to the other for any loss or damage or injury arising out of or in connection with the performance or non-performance of this Agreement is limited to the total Fees paid by Client for the Works.

13. Dispute Resolution

If a dispute arises in connection with the Contract, then either party may give written notice of the dispute to the other identifying the dispute and providing details of it.
Within three (3) business days of the parties receiving the notice the parties must meet to attempt in good faith to resolve the dispute.
If the parties fail to reach a decision or resolve the dispute within fourteen (14) days of the date of receipt of the notice referred to in clause (a), either party may submit the dispute to mediation in accordance with the current (at the date of this Agreement) provisions of the rules published by the Institute of Arbitrators and Mediators Australia (to be found on its website iama.org.au), whose decision shall bind the parties. Such mediation shall take place in Sydney or as may be agreed between the parties.
Nothing in this Agreement will prejudice the right of a party to seek urgent injunctive or declaratory relief in respect of a dispute or any matter arising under this Agreement.

14. General Provisions

(Relationship) The parties agree that neither party has any authority to make any representations on behalf of the other party and that no partnership, joint venture, agency or other relationship is formed between the parties to this Contract.
(Governing law) This Agreement is governed by and will be construed in accordance with the laws of New South Wales.
(No Variations) This Agreement cannot be amended or varied except in writing and signed by the parties.
(Entire Agreement) The terms of the contract constitute the entire terms of this contract and all understandings, prior representations, arrangements or commitments that are not contained in this contract have no effect whatsoever and do not bind the parties.
(Waiver) No waiver of any right or remedy will be effective unless in writing and shall not operate as a waiver of that right or remedy or any other right or remedy on a future occasion.
(Notices) Every notice required or permitted to be served (Notice) by any party (Sender) on another party (Recipient) pursuant to this Contract must be in writing. A Notice will be deemed to have been effectively served:
- if sent by prepaid post to the Recipient at the address of the Recipient as set out at the beginning of this Agreement, on the third business day following the date of postage by the Sender;
- if hand delivered, on the date of delivery to the Recipient’s address as set out as set out at the beginning of this Agreement unless such delivery occurs after 5.00pm or at any time on a day which is not a business day, in which case the Notice will be deemed to have been effectively served on the next business day; and
- if transmitted by email to a party’s email address as set out at the beginning of this Agreement and a correct and complete transmission report is received by the Sender, on the day of transmission if a business day, or otherwise on the next business day (but only if no intimation has been received by the Sender that the notice has not been received, whether that intimation comes from the party to whom the notice is addressed or from the operation of an email system or otherwise).
A party may change its details for notices by written notice to the other party.
(Counterparts) The Contract may be executed with an electronic signature (such as scanned signature or other means of secure electronic authorisation). This Agreement may be executed in one or more counterparts, either by electronic or inked signature, each of which shall be deemed an original and all of which together shall constitute one and the same Agreement. Signed originals may be exchanged in hardcopy, via facsimile, or .pdf file by email and any such form shall be deemed an original.

15. Definitions & Interpretation:

Background IP means Intellectual Property created or developed by a party or otherwise held by that party other than in connection with this Contract.
Client means the party named as client in the Quotation.
Confidential Information means all information in whatsoever form that is:
- marked or identified as “Confidential”, “Secret”, “Not to be Disclosed” or “Private”;
- is designated, described or referred to by the disclosing party in any document or correspondence as confidential, secret or private or not to be disclosed; (iii) the receiving party knows or ought to know is confidential; but does not include any information which prior to the date of this Contract was lawfully in the public domain or which the disclosing party has published, circulated or announced publicly or was developed by the receiving party independently of the disclosing party.
Contract means together these terms and conditions, the Quotation and (if applicable) the Purchase Order.
Contract IP means Intellectual Property created or developed by D2P or by D2P and Client together during or in connection with D2P delivering Goods and performing Services pursuant to the Contract.
Fees means the fees payable to D2P for the Goods and Services.
Goods means the Goods provided by D2P to Client as set out in the Purchase Order.
GST means the Australian Goods and Services Tax.

Intellectual Property means all Intellectual Property rights throughout the world, including patents, copyright, rights in circuit layouts, registered designs, trade or service marks, trade, business or company names, trade secrets, ideas, concepts, materials, know-how and techniques, and any application or right to apply for registration of, or assert or waive, any such rights.
Purchase Order means an order form sent by Client to D2P for purchase of Goods and Services the subject of a Quotation.
Quotation means the Quotation sent by D2P to the Client.
Services means the Services provided by D2P to Client pursuant as set out in the
Purchase Order.
Works means Services performed by D2P in fulfilment of a Purchase Order and may include without limitation, delivering and installing Goods or performing Services.