1. APPLICATION OF TERMS
1.1 Unless otherwise agreed by Wesbeam in writing, these Terms apply to, and represent, the entire agreement of the parties in connection with the Services provided by Wesbeam to the Customer.
2. PERFORMANCE OF SERVICES
2.1 Wesbeam will use its reasonable endeavours to meet any requested or estimated dates for delivery of any deliverables as part of the Services by Wesbeam. Any period or date for the provision of Services requested by a Customer or given by Wesbeam is intended as an estimate only and is not a contractual commitment.
2.2 At any time and for any reason, Wesbeam may elect to discontinue or to not provide any Services to the Customer.
2.3 The Customer acknowledges and agrees that Wesbeam shall not accept any liability whatsoever (including, without limitation, for loss or damage suffered by the Customer) for:
- (a) any delays in the provision of Services to the Customer from any cause whatsoever; and
- (b) Wesbeam suspending, discontinuing, cancelling or otherwise not providing any Services to the Customer.
3. ACKNOWLEDGEMENTS
3.1 The Customer acknowledges and agrees that it may not use any Services other than in conjunction with the products specified by Wesbeam as part of the Services.
3.2 The Customer acknowledges and agrees that Wesbeam may use third party suppliers and contractors in providing the Services.
3.3 The Customer acknowledges and agrees that it is the Customer's responsibility to:
- (a) provide Wesbeam with clear, complete and accurate specifications and information and any specific requirements and applications in relation to the Services; and
- (b) ensure the Services, including any design layout or quotation, have been completed in accordance with the Customer's specifications, information, requirements and applications.
3.4 The Customer acknowledges and agrees that if the Customer fails to provide all necessary specifications, information, requirements and applications, or the Customer fails to provide accurate details of all such specifications, information, requirements and applications, then:
- (a) Wesbeam is not responsible for any aspect of the Services that is not provided in a competent manner as a consequence of such failure; and
- (b) the Customer must not make any claim or demand against Wesbeam in respect of any aspect of the Services that is not provided in a competent manner as a consequence of such failure.
3.5 The Customer acknowledges and agrees that:
- (a) Wesbeam may provide preliminary or draft Services for comment by the Customer. No reliance may be placed on any Services that are designated by Wesbeam as preliminary or draft or where they are noted as 'not for construction';
- (b) any design layout or quotation provided to the Customer through the provision of Services is subject to change, including pending confirmation of the Truss Layout;
- (c) until the Customer confirms the Truss Layout to Wesbeam, any Services provided are preliminary only and no reliance can be placed on them;
- (d) any change to the specifications, information, requirements or applications provided by the Customer, including to the Truss Layout, may void any previous Services provided that are affected by that change;
- (e) Wesbeam accepts no liability in respect of any change to the specifications, information, requirements or applications provided by the Customer and is not obliged to provide any further Services after or as a result of any such change or otherwise; and
- (f) where Wesbeam elects, in its absolute discretion, to provide a revised design layout and quotation to the Customer, this voids all previous design layout and quotations provided by Wesbeam to the Customer, and no reliance can be placed upon any such previous Services provided by Wesbeam to the Customer following such revision.
3.6 The Customer acknowledges and agrees that, where particular products supplied by Wesbeam are specified on a design layout or quotation provided to the Customer through the provision of Services:
- (a) products with higher levels of protection (including against corrosion, fire termites or other attributes) may be required; and
- (b) it is the Customer's responsibility to confirm the suitability of the products in the environment in which they will be used.
3.7 The Customer acknowledges and agrees that any certification attached or implied in the Services is valid only for the specified products supplied by Wesbeam. Any changes, substitution or use of similar products will not be covered by Wesbeam and render any certification attached or implied null and void.
3.8 The Customer acknowledges and agrees that, in respect of any design layout or quotation provided to the Customer through the provision of Services:
- (a) it is assumed that the supporting structure is designed to support loads from the floor system, walls and roof above;
- (b) all concentrated loads are to be supported through to the footings and that this is the responsibility of the Customer to ensure;
- (c) additional columns or supports required will be identified on the design layout;
- (d) any steel beams specified on the design layout are to be designed and supplied by others; connection of Wesbeam timber products to steel beams allowed for will be included on the design layout (excluding 70/90mm fixing plates) unless otherwise noted;
- (e) timber beam to beam connections not within the range of the proprietary hangers and brackets supplied by Wesbeam are the responsibility of the Customer (and / or their builder(s) or engineer(s)), the position of which such connections required will be shown on the design layout; and
- (f) it is subject to information specifically referred to by Wesbeam in the course of providing the Services, including any such Wesbeam installation guides, technical product specifications, service hole guides or other materials. Insofar as any such information specifically referred to by Wesbeam is located on Wesbeam's website, it is subject to the terms and conditions found at: https://wesbeam.com/terms-conditions, to which the Customer agrees to be bound.
3.9 The Customer acknowledges and agrees that all limitations of liability in these Terms are fair and reasonable in all of the circumstances.
4. DEFECTS
4.1 Subject to paragraph 4.4, in providing any part of the Services, Wesbeam will not be liable for any defects or non-compliance with the specifications, information, requirements or applications provided by the Customer unless the Customer notifies Wesbeam in writing with full details within five days of the date on which the affected part of the Services is provided.
4.2 If Wesbeam identifies any defects or non-compliance with the specifications, information, requirements or applications provided by the Customer, Wesbeam may, at its option and in its absolute discretion, re-provide the relevant Services.
4.3 Subject to paragraph 4.4, no limitation or exclusion of liability in these Terms applies in respect of statutory consumer rights and remedies which cannot be excluded.
4.4 Insofar as permitted by law, any liability of Wesbeam in providing Services is limited, at the option of Wesbeam:
- (a) to re-supply of the relevant Services; or
- (b) payment of the cost of having the relevant Services re-supplied.
4.5 To the maximum extent permitted by law, the Customer acknowledges and agrees that the Customer has no other remedy at law (other than those under paragraph 4.4) in connection with the provision of any defective or non-compliant Services.
5. INTELLECTUAL PROPERTY
5.1 The Customer warrants that, where it provides Intellectual Property for use by Wesbeam in relation to the provision of Services, it is legally entitled to do so and the Customer will indemnify Wesbeam, its related bodies corporates and their respective officers, directors, agents, contractors and employees ("Indemnified Parties") against all claims made against Wesbeam in connection with the infringement of any Intellectual Property rights that a third party may claim against the Indemnified Parties in regard to Intellectual Property purportedly owned by the Customer.
5.2 Any Intellectual Property provided to the Customer by Wesbeam in connection with the provision of Services remains the exclusive property of Wesbeam and must be returned to Wesbeam on demand and must not be copied, reverse engineered or communicated to any third party without the express written consent of Wesbeam.
5.3 Subject to these Terms, Wesbeam hereby grants to the Customer a limited, non exclusive, non-transferable, Australian licence to use Wesbeam’s Intellectual Property developed or created by Wesbeam’s personnel in the course of providing the Services. Without limitation, the Customer must not in any way assign, transfer, modify or alter Wesbeam's Intellectual Property in an unauthorised manner or for an unauthorised purpose.
6. REPRESENTATIONS
6.1 The Customer warrants and agrees that:
- (a) the Customer has not relied on any representations made by Wesbeam which has not been reproduced in these Terms; and
- (b) other than information specifically referred to by Wesbeam in the course of providing the Services, the Customer has not relied on any information of any kind contained in any document, including any catalogues or publicly available material, produced by or on behalf of Wesbeam. This includes any Wesbeam installation guides, technical product specifications, service hole guides or other materials available on Wesbeam's website to the extent:
(i) that that material is not specifically referred to by Wesbeam in the course of providing the Services;
(ii) of any inconsistency between any such material on the Wesbeam website and the information specifically referred to by Wesbeam in the course of providing the Services; and
(iii) that that material is not the then current and most recent version of those materials.
6.2 The Customer acknowledges and agrees that, to the extent that Wesbeam has made any representation which has not been reproduced in these Terms, the Customer has been provided with an opportunity to independently verify the accuracy of any such representation.
7. LIABILITY
7.1 Wesbeam makes no express warranties other than those set out in these Terms.
7.2 Except as specifically set out herein, any term, condition or warranty in respect of the performance of Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded to the extent that the law permits.
7.3 To the maximum extent permitted by law, Wesbeam's liability under any guarantee, condition or warranty (including without limitation, any guarantee, condition or warranty of merchantability, acceptable quality, fitness for purpose or fitness for disclosed result), or any other right or remedy, under any legislation or implied by any legislation is hereby excluded.
7.4 To the maximum extent permitted by law, Wesbeam is not liable for:
- (a) any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party; or
- (b) any special, punitive or exemplary damages.
8. ENFORCEABILITY
8.1 If any part of the Terms is unenforceable, it shall be read down so as to be enforceable, or, if it cannot be so read down, that part shall be severed from these Terms without affecting the enforceability of the remaining part of the Terms.
9. CONFIDENTIALITY
9.1 Except as required by law, the Customer undertakes and agrees that it will not disclose any confidential information of Wesbeam to any person or use any knowledge or information obtained by it from Wesbeam at any time which is of a secret or confidential nature relating to the business, equipment, processes or Services offered or used by Wesbeam without prior written consent from Wesbeam.
10. GENERAL TERMS
10.1 Subject to paragraph 10.2, these Terms cannot be varied or substituted by any other terms or conditions, including, without limitation, any contractual provisions proposed by the Customer as part of any purchase order.
10.2 Wesbeam may vary or amend these Terms by notice in writing to the Customer at any time. Any variations or amendments will apply to Services provided by Wesbeam to the Customer after the date of notice.
10.3 Failure by Wesbeam to enforce any of these Terms shall not constitute a waiver of Wesbeam's rights thereafter to enforce each, any and every of these Terms.
10.4 The Customer must not assign or novate its rights under these Terms without the prior written consent of Wesbeam.
10.5 These Terms are governed by the laws of Western Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of Western Australia and the division of the Federal Court of Australia in that jurisdiction, and the courts of appeal from them. The Customer agrees to waive any rights to claim that any such courts are an inconvenient forum.
10.6 Each of these Terms survives the termination of this agreement between Wesbeam and the Customer, including termination by performance.
11. DEFINITIONS
11.1 In these Terms:
"Customer" means the person (including any natural person, company, partnership, association, firm, corporation or other body corporate) obtaining the Services, jointly and severally if there is more than one person obtaining the Services.
"Intellectual Property" means all current and future rights to copyright, trademarks, designs, patents, inventions, specifications, formulations, software packages and confidential information, whether registerable or not, including applications for grant of any of the foregoing and other rights of a similar nature arising (or capable of arising) under law anywhere in the world.
"Wesbeam" means Wesbeam Pty Ltd.
"Services" means any services provided by Wesbeam to the Customer in connection with Wesbeam's Design Centre Service or otherwise relating to the design layout of or estimating and quotation services in connection with the supply or potential supply of Wesbeam products to a Customer.
"Terms" means these Terms and Conditions.
"Truss Layout" means a setout plan produced by a licensed frame and truss manufacturer showing the span, spacing and location of roof trusses, including girder trusses.