Terms and Conditions of sale
IMPORTANT NOTE: Shipping outside of Australia.
Please note you may be charged a tax or duty fee! As the recipient, you are liable for all import duties levied by the country you are shipping to. We are unable to advise or predict the amount and have no control or influence over this. All charges outside Australia are the responsibility of the recipient.
1. Definition and Duration
These conditions form part of a quotation submitted by Spark FX Pty Ltd (“the Vendor”) to the Customer (“the Buyer’) named in this document. The Vendor will supply the goods described in the attached quotation for the Contract Sum described in the same. This quotation may only be accepted by written notice to the Vendor within thirty days of the date of the quotation and, if not so accepted, the Vendor reserves the right to revise or withdraw it.
2. The Contract
2.1 Upon acceptance of this quotation, a binding contract (“the contract”) shall be created between the Vendor and the Buyer solely on these terms contained herein, including the terms contained in the Vendor’s quotation.
2.2 The Buyer has represented ability and capacity to pay for the goods and must provide a suitable guarantee for payment if requested by the Vendor.
2.3 No change in the terms of the contract shall be effective unless agreed in writing by the Vendor. The waiver by the Vendor of a term or a breach of any of these terms shall not be deemed to be a waiver of any other term or any subsequent breach of that or any other term.
3. Terms of Payment
3.1 The terms of payment by the Buyer are strictly full payment before delivery.
3.2 All pricing on this website are in $AUD
4.1 The delivery of the goods shall be by method mutually agreed by the parties.
4.2 If delivery of the goods by the Vendor is delayed or interrupted because the Buyer fails to adhere to any terms of the contract:
(a) the Buyer shall not be entitled to defer payment for goods manufactured, procured or supplied by the Vendor;
(b) the Vendor shall be entitled to add to the contract sum a storage charge equivalent to 1.5% per month of the value of goods manufactured, procured or supplied;
(c) the Vendor shall be entitled to add to the contract sum the amount of any additional costs in materials, labour and overheads incurred by reason of such delay or interruption, and a reasonable allowance for profit margins; and
(d) the Vendor shall be entitled to a reasonable extension of time to
manufacture, procure or supply the goods.
5. Cost Adjustment
5.1 If the goods are to be supplied within three months after acceptance of this quotation, then no cost adjustment shall apply. But if the goods are not to be supplied within that period, then the contract price shall be subject to adjustment for rise and fall in the costs of labour and materials, calculated on the proven costs of labour and material increases or decreases.
5.2 The Vendor shall be entitled to apply a cost adjustment in circumstances where the Buyer requires the Vendor and/or its employees to comply with specific site safety procedures, including, but not limited to, inductions. The adjustment shall be in recognition of the time and costs incurred by the Vendor in complying with these requests.
6. Extension of Time
6.1 If the Vendor is delayed in the supply of the goods due to any cause beyond his control (including, but not limited to, acts of God, strikes, lockouts or other industrial disturbances, fire, flood, explosion and laws, rules, regulations or orders of any Government authority or delays caused by any other person, company or authority), the Vendor shall be entitled to a reasonable extension of time to supply the goods while such cause exists and the provisions of Clause 5 shall apply.
6.2 If any such cause continues for six months or more, either party may by notice in writing to the other terminate the contract. The termination of the contract shall not affect the rights and obligations of either party which accrued prior to such termination.
6.3 Stock levels are maintained as accurate as possible however in an event where an item becomes out of stock or on back order, we ill endeavour to dispatch your ordered items at the next stock availability. In a rare occasions back orders may take between 4-6 weeks depending on availability. Please check with us for a more accurate delivery date, if your item is listed on back order or sold out.
7. Materials, Details and Dimensions
7.1 The Buyer before accepting this quotation acknowledges that adequate care has been taken to ensure that the goods requested are of the correct type, size, rating, standard, quality, colour, finish and express the full requirements and conform to any specifications and drawings against which the quotation was submitted.
7.2 The Buyer shall provide the Vendor with all necessary information, including, but not limited to, dimensions and locations, in adequate time to enable the Vendor to produce the goods in accordance with the contract.
8.1 If the Buyer requests any variation in the goods during the contract, including but not limited to any variation in materials or dimensions,, the Vendor shall, in accepting the variation, be entitled to increase or decrease the contract sum to take account of the costs of such
variation, as the case requires (including an allowance for materials already manufactured or procured, or work already done, but not required) and shall be entitled to a reasonable extension of time to supply the goods, as varied.
8.2 If the cost to the Vendor of supplying, or having supplied the goods increases or decreases because of changes in statutory, government or semi-government charges, taxes, rates, levies or imposts with respect to the Vendor or the goods or changes in currency exchanges rates, the contract sum shall be increased or decreased to the extent of such changed costs.
8.3 Where extra cost in materials, labour and overhead is occasioned to the Vendor by virtue of acceleration of the agreed delivery date and time or of the presence of obstructions or conditions which could not reasonably have been anticipated by the Vendor, it shall be added to the contract sum.
8.4 The Buyer agrees that it will respond to the Vendor’s claims for variations reasonably and promptly and that should it either fail to accept any claim for a variation from the Vendor within ten (10) working days of receiving it or fail within the same period to give to the Vendor in writing a reasonable explanation for not accepting such claim, then the amount of such claim shall be added to the contract sum.
9.1 Subject to Clause 9.2, upon delivery of the goods, the goods shall thereafter be at the Buyer’s risk and delivery will be deemed to be complete.
9.2 If the Buyer has paid for the goods prior to delivery of the goods, the property in the goods shall pass to the Buyer upon its dispatch to the Buyer. In all other circumstances, property shall remain that of the Vendor until payment in full for the goods has been received by the Vendor.
10. Retention of Title
Until payment in full is received by the Vendor and property in the goods passes to the Buyer, the Buyer shall hold the goods as bailee for the Vendor.
Unless otherwise agreed in writing, the Vendor’s responsibilities in respect of commissioning the goods shall be limited to proving conformance of the goods with the specification supplied by the Buyer.
12. Claims Against the Vendor
12.1 Any claim which the Buyer may have against the Vendor shall be deemed to be waived if not made in writing within ten (10) working days from the date of the event giving rise to such claim.
12.2 The Vendor shall not be liable for any damage to materials or the goods caused by the Buyer or third parties.
12.3 Unless otherwise agreed in writing, the Vendor shall not be liable to pay pre-ascertained or liquidated damages.
12.4 The Vendor will not accept the return of, or give credit for, any goods supplied in accordance with the contract, except where explicitly agreed by the Vendor in writing.
12.5 The Vendor shall not be liable for any delay caused in consequence of proceedings being taken or threatened by, or disputes with, adjoining or neighbouring landowners and the provisions of Clauses 5 and 6 shall apply.
13.1 The Vendor warrants that all materials and workmanship comprising the goods shall be of good quality.
13.2 The Vendor will rectify any defects in materials or workmanship of the Vendor appearing in any of the goods within twelve months of delivery of those goods, provided that the Buyer took reasonable steps to inspect the goods prior to delivery and satisfy itself as to the condition of the goods.
13.3 Where any warranty has been given by a third party in respect of materials and workmanship supplied by that third party to the Vendor and incorporated in the goods, and such warranty imposes less obligations on the third party than those imposed on the Vendor by Clause 13.2 the Vendor shall give a like warranty to the Buyer, which shall apply to such goods, materials or workmanship to the exclusion of Clause 13.2.
13.4 All relevant warranties shall be voided by any modifications or alterations to the goods (once delivery to the Buyer has been effected) not made by the Vendor.
13.5 Any defects appearing in the goods, caused by the use by the Buyer or any third party of faulty materials or workmanship, or attributable to the activities of other trades, structural loads, vandalism or maltreatment, are excluded from the provisions of Clause 13.2.
14. Limitation of Liability
14.1 The Vendor shall not be liable in contract or in tort or otherwise arising, for any consequential, special or contingent damages which may be claimed to have resulted from any of the Vendor’s actions, omissions, performance or failure to perform any obligation under the contract.
14.2 The exclusions, releases and indemnities in this Contract extend to loss of profits, business or anticipated savings and any other indirect or consequential damage and to economic loss, even if the Vendor knows they are possible or otherwise foreseeable.
14.3 Notwithstanding anything to the contrary, in no circumstances whatsoever shall the Vendor be liable in contract or in tort or otherwise, for loss, expense or damages incurred, sustained or suffered by the Buyer in an amount exceeding 10% in monetary value of the contract sum.
Any insurance effected by the Vendor in relation to the goods shall cover the Vendor’s interests only.
The Vendor may withhold delivery of the goods, or terminate the contract and repossess any goods not yet paid for by the Buyer if the Buyer either fails to perform or observe any term of the contract (including the terms of payment), or enters into an agreement or arrangement with its creditors or, being an individual, commits an act of bankruptcy or is make bankrupt, or, being a company, resolves or is ordered to be wound up or has a liquidator, receiver, receiver and manager or official manager or administrator appointed for all or any part of its assets. Such suspension or termination shall not affect any rights of the Vendor accrued against the Buyer. The Vendor shall be entitled to be reimbursed for any loss or damage sustained as a result of the default of the Buyer, including any loss sustained through the suspension of delivery and subsequent resumption of the goods.
If the Buyer requests cancellation of the contract, he/she shall pay for work done pursuant to the contract to the date of such request and shall pay the Vendor compensation for all losses (including consequential losses, lost profits and the loss of prospective profits) suffered by it as a result of such cancellation.
18. Intellectual Property
18.1 The Buyer acknowledges and agrees that all intellectual property in the goods remains the property of the Vendor and this contract does not confer any rights or licenses in relation to any intellectual property in the goods and the Buyer shall take or cause to be taken such reasonable precautions as may be necessary to any intellectual property in the goods.
The Buyer shall keep secret and confidential and shall not disclose to any third party without the prior written consent of the Vendor any information, data, specification, drawings, reports, accounts or other documents and things supplied or made available by the Vendor to the Buyer or brought into existence by the Vendor for the purpose of the manufacture or supply of the goods and the Buyer shall take or cause to be taken such reasonable precautions as may be necessary to maintain secrecy and confidentiality and prevent disclosure, including obtaining confidentiality agreements from its employees, agents and subcontractors.
20. Assignment and Subletting
Neither party shall assign the contract in whole or in part without the prior written approval of the other party, but the Vendor shall be entitled to subcontract the contract wholly or in part.
21. Implied Terms
No warranty, condition or representation, other than those contained in these terms and conditions shall be included in this contract by implication, statute or otherwise, but nothing contained here shall be deemed to attempt to exclude, restrict or modify any implied warranty or condition in relation to the goods and services to be supplied by the Vendor, the exclusion, restriction or modification of which would pursuant to any statute render this clause or anything contained here void or illegal.
The Buyer shall be responsible for and shall indemnify and keep indemnified the Vendor and its directors, officers and employees from and against liability for all loss damage or injury to persons or property caused by the Buyer or its servants, employees, agents or subcontractors (including any loss, damage or injury which may be suffered by the Buyer or any of its employees, agents or others engaged by the Buyer) arising directly or indirectly out of the performance of the Contract and/or in connection with this Contract and the amount of all actions, proceedings, claims, damages, costs and expenses which may be taken or made against the Vendor (or which the Vendor incurs or which become payable by the Vendor) in respect of any such loss, damage or injury shall be made good at the Buyer’s expense and shall be a debt due and payable immediately by the Buyer to the Vendor, and the Buyer authorises that any amount may be deducted from any money due or becoming due to the Buyer.
23. Governing Law
Both parties agree that these terms and conditions are governed by the laws of New South Wales and are to be construed as such. Both parties submit to the exclusive jurisdiction of New South Wales.
If any condition or part of a condition of this contract is unenforceable, then that condition or part is to be severed from the contract and the enforceable conditions and parts remain unaffected and are to be read as a complete contract.
All prices on this web site are subject to change without notice. Whilst we make every effort to provide you the most accurate, up-to-date information, occasionally, one or more items on our web site may be mis-priced.
25.1 In the event a product is listed at an incorrect price due to typographical, photographic, or technical error or error in pricing information Spark FX shall have the right to refuse or cancel any orders placed for product listed at the incorrect price.
25.2 If an item’s correct price is lower than our stated price, we will charge the lower amount and ship you the item.
25.3 If an item’s correct price is higher than our stated price, we will cancel your order and notify you of the price error and order cancellation. You will, of course, have an opportunity to purchase the item at the correct price, if you so wish.
This Policy may change from time to time and is available on our website.