MAESTRO SPORTS PTY LTD
STANDARD TERMS AND CONDITIONS OF SALE
1.1 In these terms and conditions, unless otherwise stated, the following terms shall have the following meanings:
1.2 “Client” means the person, firm or company seeking to purchase Goods and/or Services from Maestro Sports;
1.3 “Commencement Date” means the date on which Maestro Sports is required to commence providing the Services and/or supplying the Goods to the Client;
1.4 “Completion Date” means the estimated date for completion of the Project which date shall be provided to the Client in writing on acceptance of the Quotation;
1.5 “Contract” means the contract for sale and purchase of the Goods and/or Services made between Maestro Sports and the Client in accordance with the Quotation and in all cases on these Terms and Conditions but which may be constituted in any form;
1.6 “Fee” means the fee payable by the Client to Maestro Sports as specified in the Quotation;
1.7 “Goods” shall mean any products offered for sale by Maestro Sports and to be purchased by the Client and as specified in the Quotation;
1.8 “Intellectual Property Right” all patents, right to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or the suitable passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or un-registered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Maestro Sports” means Maestro Sports Australia Pty Ltd a company incorporated in Australia(ABN 69 143 165 502 ) having its Registered Office. P O Box 2606, TAREN POINT NSW 2229
1.10 “Project” means the description of the work including the Goods and/or Services to be provided by Maestro Sports to the Client as detailed in the Quotation;
1.11 “Quotation” means the document detailing the Goods and/or Services and/or the Fees provided to the Client by Maestro Sports in relation to the Project;
1.12 “Services” means the services, including but not limited to hosting, content management and search engine submissions to be provided by Maestro Sports, or a third party on behalf of Maestro Sports, to the Client in relation to the Project under the Contract as detailed in the Quotation;
1.13 “Terms and Conditions” means these terms and conditions.
1.14 Subject to Clause 3.3, every Quotation issued by Maestro Sports (in whatever form) and accepted by the Client shall constitute a separate Contract.
2 Maestro Sports's Terms and Conditions to Apply
2.1 These Terms and Conditions shall apply to and govern any Contract or transaction between Maestro Sports and the Client and shall supersede and take precedence over any other terms and conditions, whether written or oral (including without prejudice to the foregoing generality, any contained in any order form used by the Client), and notwithstanding anything to the contrary in such other terms and conditions.
2.2 No amendment, variation of, or addition to any part of these Terms and Conditions may be made except in writing signed by a duly authorised representative of the Client and Maestro Sports and any other amendments, variations etc. or purported amendments; variations etc. to these Terms and Conditions shall be invalid and unenforceable.
3 Fees for the Goods and Services
3.1 Maestro Sports shall provide the Goods and/or Services to the Client and the Client shall pay the Fees in accordance with these Terms and Conditions and the Quotation.
3.2 All Quotations remain valid for 30 days from the date of the relevant Quotation and a signed copy of the Quotation shall be returned to Maestro Sports signifying the Client’s acceptance of its terms.
3.3 The Client will be entitled to request Maestro Sports in writing to vary the Quotation in the event it requires an alteration to the Goods and/or Services to be provided under the Contract in relation to the Project.
3.4 Maestro Sports reserves the right to increase or otherwise vary the Fees for the Goods and/or Services where, after a request for variation of the provision of the Goods and/or Services has been made by the Client in accordance with Clause 3.2, where Maestro Sports considers such variations to be feasible. Maestro Sports shall issue an amended. Quotation to the Client in relation thereto for written acceptance by the Client.
3.5 Maestro Sports shall have no liability whatsoever to the Client if Maestro Sports is unavailable to provide the Services or to supply the Goods for any reason.
3.6 Maestro Sports reserves the right to increase or otherwise vary the Fees for the Goods and/or Services where, after a request for provision of the Goods and/or Services has been made by the Client but prior to provision of the Goods and/or Services, new, additional, or increased taxes, levies, tariffs, or duties are levied in respect of the Services by any Local, State or The Australian Government (including the GST) or any other taxing authorities.
3.7 Unless credit terms or other payment arrangements have been agreed in writing the Fees for the Goods and Services shall be invoiced and paid for in full within 30 days of the date of such invoice.
3.8 If any invoice remains unpaid beyond 30 days of the relevant invoice date, interest will run on the amount outstanding at the rate of Four (4) per cent per annum above the base lending rate of the National Australia Bank from time to time.
3.9 The Client shall have no right to set off any sums due or to become due by it to Maestro Sports against any sums due or to become due by Maestro Sports to the Client, and The Client shall make payment of any sums invoiced by Maestro Sports in respect of the Contract and/or the Goods and/or the Services and any interest due without any set off, compensation or deduction of any kind.
4 Provision of Goods and Services
4.1 The Client will co-operate with and provide access to, and use of, all information, data and documentation reasonably required by Maestro Sports to enable it to perform its obligations under the Contract.
4.2 The Client will be responsible for the accuracy of all information and materials provided to Maestro Sports and will ensure that such materials do not infringe the Intellectual Property Rights of a third party.
4.3 Maestro Sports will use its reasonable endeavours to comply with the Completion Date and with such variations as may be authorised in accordance with Clause 3.3. For the avoidance of doubt time is not of the essence and Maestro Sports will not be liable for failure to meet the Completion Date for any reason whatsoever.
4.4 Maestro Sports shall use reasonable endeavours to deliver the Goods within a reasonable period but, unless otherwise expressly agreed in writing, delivery dates specified by Maestro Sports are approximate and given for the guidance of the Client only.
4.5 Time shall not be of the essence of the Contract with regard to delivery of the Goods. Maestro Sports shall not be under any liability to the Client for any delay in delivery or for non-delivery of the Goods nor may the Client cancel the Contract or treat it as repudiated. If delivery is made by instalments separate invoices for each instalment may be issued.
4.6 Property and title to the Goods will not pass until such time as payment is made in full to Maestro Sports of all sums and debts due in respect of the Goods supplied not only under the Contract but also under any other contract for the supply of goods and all other sums for the time being howsoever due or to become due by the Client to Maestro Sports.
4.7 The Client must notify Maestro Sports in writing within seven days of the date of delivery or collection of the Goods of any damage to or defects in all or any part of the Goods, or if the quantity delivered is not as stated in the Contract or as agreed between Maestro Sports and the Client. Maestro Sports shall use its best endeavours to procure that Goods are suitably packaged prior to despatch but without liability to the Client for damage for want of suitable packing. Maestro Sports shall have no liability whatsoever to the Client in respect of damage, defects or short delivery and the Client shall be deemed to have irrevocably waived all its rights and remedies which it might otherwise have had in relation to such damage, defects or short delivery unless proper notification has been made in accordance with this clause 4.6 and clause 6.2 of these Terms and Conditions.
4.8 The Services will be provided to the Client as detailed in the Quotation and the Client accepts that such Services may be provided subject to third party terms and conditions.
4.9 The Client will provide to Maestro Sports written acceptance that the Goods and/or Services are provided to the Client in accordance with the Quotation in acknowledgement that Maestro Sports has performed all of its obligations under the Contract. If such written acceptance has not been received by Maestro Sports within 30 days of receipt of goods it deemed that Maestro Sports have performed all of tis obligations
5 Intellectual Property Rights
5.1 All Intellectual Property Rights in all documents and other materials developed and prepared by Maestro Sports for use in relation to provision of the Services shall be owned by Maestro Sports and shall not be copied or otherwise reproduced without the prior written consent of Maestro Sports.
5.2 All Intellectual Property Rights in the Goods designed and produced by Maestro Sports for the Client in relation to the Project are to be assigned to and will vest in the Client upon payment of the Fees unless otherwise stated in the Quotation.
5.3 The Client shall retain title to all drawings, designs, specifications and technical data and all Intellectual Property Rights in relation thereto, provided to Maestro Sports to enable it to perform its obligations under the Contract.
6 Warranties and Implied Terms
6.1 Maestro Sports shall use its reasonable endeavours to manage and complete the Services in accordance with the Contract.
6.2 If the Goods or any of them supplied to the Client are defective, Maestro Sports may, at its sole option and discretion, at no further expense to Client, either repair or replace the defective Goods. Client shall have no other remedy in respect of defective Goods and in particular but without prejudice to the foregoing generality, shall have no remedy in damages. The Client shall notify any defects in the Goods to Maestro Sports in accordance with clause 4.7 and in the event that Client fails to notify any defects in the Goods accordingly it shall be deemed to have irrevocably waived all its rights and remedies which it might otherwise have had with regard to such defects in respect of the Goods.
6.3 Unless otherwise stated, and except as provided in this Clause 6 or in respect of any warranty or term implied by law and which by law cannot be excluded, Maestro Sports gives no warranty, representation or undertaking, whether express or implied, regarding the condition or quality of the Goods and all such terms, warranties, representations and/or undertakings implied by law are to the maximum extent permitted hereby excluded, including without prejudice to the foregoing generality of the Trade Practices Act 1974, as amended, or relevant similar State or Territory legislation ("the Acts"),
6.4 Except to the extent implied by law and which by law cannot hereby be excluded, Maestro Sports shall not under any circumstances be liable to the Client for any indirect or consequential loss including without prejudice to the foregoing generality, financial loss, loss of profits, production, anticipated savings or income. Where any person, firm or company by whom Maestro Sports is or has been engaged excludes limits or restricts its liability to Maestro Sports in respect of the Services or any of them or any loss or damage arising in connection therewith, then the liability of Maestro Sports shall be correspondingly excluded, limited or restricted.
6.5 The Client warrants that any content, documents or other materials provided to Maestro Sports for the performance of the Services shall not infringe the Intellectual Property Rights of any third party and shall not be defamatory, obscene or offensive or breach any applicable local, national or international law or regulation.
7.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, processes or initiatives which are of a confidential nature and have been disclosed to the Client by Maestro Sports, its employees, agents or sub contractors and any other confidential information concerning the Maestro Sport’s business which the Client may obtain. The Client shall restrict the disclosure of such confidential materials to such of its employees, agents or sub contractors as need to know the same for the purpose of discharging the Client’s obligations to the Maestro Sports and will ensure that such employees, agents or sub contractors are subject to obligations of confidentiality corresponding to those which bind the Client.
7.2 All materials, software, equipment and tools, drawings, specifications and data supplied by Maestro Sports to the Client in respect of the Services shall, at all times, be and remain the exclusive property of Maestro Sports but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to Maestro Sports and shall not be disposed of or used other than in accordance with Maestro Sport’s written instructions or authorisation.
8.1 Any notice required to be given by either party to the other shall be in writing and may be given by hand or sent by first class pre-paid post to the other party at the address stated in the Details or such other address or e-mail address, as may be subsequently notified to the other party.
8.2 Any notice will be deemed to have been received if given by hand upon delivery, if by post three days after posting, and if by e-mail upon being sent.
9.1 Maestro Sports shall be entitled to terminate the Contract or any other contract for the supply of and or such Goods between the Client and Maestro Sports in the event that the Client is in material breach of any terms thereof. Upon termination Maestro Sports shall be entitled to repossess the Goods where any sum remains outstanding in respect of the Goods. Furthermore, all sums due by the Client to Maestro Sports at the date of termination of the Contract or any other contract for the supply of Goods and/or Services shall become immediately due and payable by the Client to Maestro Sports without prejudice to Maestro Sports whole other rights and remedies.
9.2 In the event that the Client, being a limited Company, becomes unable to pay its debts within the meaning of the Insolvency Act or has a Receiver, Liquidator (including a Provisional Liquidator) or Administrator appointed to it, or being an individual, firm or partnership becomes apparently insolvent or has a Trustee in Sequestration appointed to his or its estate or the equivalent thereof in any foreign jurisdiction, Maestro Sports will be entitled to terminate the Contract or any other contract for the supply of goods and upon termination shall be entitled to repossess the Goods or any other goods supplied under the Contract. In such event all sums due by the Client to Maestro Sports at the date of termination of the Contract or any other such contract shall become immediately due and payable by the Client to Maestro Sports, without prejudice to Maestro Sports whole other rights and remedies.
10.1 To the extent that any clause or part of these Terms and Conditions is or becomes invalid or unenforceable for any reason, the remainder of these Terms and Conditions shall remain in full force and effect to the intent that any invalid or unenforceable clause or provision shall be entirely separate and separable.
No waiver by Maestro Sports of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provisions.
12 Force Majeure
12.1 Maestro Sports shall be entitled to cancel or suspend the Contract and/or the sale and supply of the Goods and/or Services without liability for loss or damage if performance of its obligations is prevented or in any way adversely affected by reason of any act or occurrence beyond its reasonable control including, without prejudice to the foregoing generality, fire, accident, failure of suppliers or sub-contractors, strike, riot or civil disturbance, statutory enactment or Act of God.
13 Governing Law
13.1 The Contract and these Terms and Conditions shall be governed by the Law of Australia and Maestro Sports and the Client hereby prorogate the non-exclusive jurisdiction of the Australian Courts.