Terms & Conditions of Service

Please read out Terms & Conditions of Service carefully to ensure you fully understand how we operate before engaging in our services.

This is a legally binding Agreement between Walsh Avionics (WAPL) and the Customer and will apply to all Services and/or Parts provided by WAPL to the Customer, notwithstanding any other terms proposed by the Customer.

1. DEFINITIONS

In this Agreement, unless the context otherwise requires:

Agreement is defined in clause2.3.

Australian Consumer Law means the Competition and Consumer Act 2010 (Cth).

Costs mean the costs specified in the Quotation.

Customer means the customer named in the Quotation and will, unless the context otherwise requires, include its employees and agents.

Equipment means any aircraft, part or component thereof, furnished by or on behalf of the Customer and upon which the Services are to be performed by WAPL.

Force Majeure means earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, riots, civil disturbances, strikes, boycotts, orders, dispositions, decisions, orders or measures of governmental authorities of whatever nature or denomination, or any other event which is unpredictable, insurmountable and outside the control of the parties.

Freight Charges means the charge at which the provider applies.

GST Law means A New Tax System (Goods and Services Tax) Act 1999 and related tax imposition Acts of the Commonwealth of Australia.

Incidental Damages refers to the type of legal damages that are reasonably associated with, or related to, actual damages

Labour means labour charges charged at $125.00 per hour, per tradesman plus GST

Parts mean all parts and/or components whether new or overhauled supplied by WAPL, fitted to the Equipment in performing the Services or supplied by WAPL, whether or not fitted to the Equipment.

Quotation means the quotation issued by WAPL for the Parts and/or Services.

Services means the work performed by WAPL on, or in relation to, the Equipment and/or services specified in the Quotation, and includes additional services as WAPL may in its discretion consider necessary to render the Equipment airworthy and/or serviceable and includes all transport, freight, storage, hangarage, inspection/s, modifications and testing ancillary to the services.

Technical Data means any and all Approved Maintenance Data issued by NAA regulatory body

bmean these terms and conditions or as specified on Tax Invoice

Unforeseen Circumstances mean unanticipated or unexpected circumstance or situation that affects the final price and/or completion time of a contract or project; and without fault of either party, deeming the contract or project incapable of being performed due to an unforeseen event (or events)

WAPL means Walsh Avionics Pty Ltd ACN 138 910 255 or as applicable, a related body corporate (as defined in the Corporations Act 2001 (Cth)), and shall unless the context otherwise requires, include its directors, employees, agents, independent contractors and sub-contractors.

WAPL Authorised Officer shall mean any director, secretary or position within WAPL whose title includes the word “general manager” or “responsible manager” or any person approved of by the director of WAPL to act as an authorised officer and identified as such to the Customer.

Warranty Period means the 30 day period from the date the Parts and/or Services are delivered to the Customer.

2. INTERPRETATION

In this Agreement, unless the context otherwise requires:

words importing the singular include the plural and vice versa;
words importing gender include all other genders;
words importing persons include all bodies and associates, corporate or unincorporated and vice versa;
“includes” or “including” means without limitation; references to any party include that party's executors, administrators, substitutes, successors and permitted assigns;
references to days are to calendar days; and references to “$” or “dollar” is a reference to Australian dollars.

3. QUOTATION & AGREEMENT

Any Quotation will be in writing and must be accepted by the Customer within the time stated in such Quotation but if not so stated, then 1 month from the date of Quotation, by completing and returning the appropriate authorisation to WAPL. WAPL may in its discretion accept the completed Quotation notwithstanding that it was accepted by the Customer more than 1 month from the date of the Quotation.
1. WAPL reserves the right, at WAPL’s sole discretion to withdraw or amend the Quotation at any time prior to the Customer accepting the Quotation
2. An agreement is formed when the Customer accepts the Quotation pursuant to clause 2.1 and consists of the Quotation and these terms and conditions (Agreement).

4. SERVICES

WAPL is authorised and instructed to perform the Services and to supply and/or fit the Parts.
1. WAPL will perform the Services and/or supply and/or fit the Parts in accordance with this Agreement.
2. The Customer must deliver the Equipment to WAPL’s nominated facility within 60 days from the date of Quotation.
3. Any parts or components replaced by WAPL in the course of performing the Services will be returned to the Customer at the Customer’s cost only if specifically requested by the Customer in writing within 21 days of the acceptance of the Quotation. If there is no such request, title to any such parts or components will pass to WAPL upon fitting replacement parts to the Equipment.
4. For any purpose incidental to the performance of the Services, the Customer authorises WAPL to:

test, taxi or fly the Equipment; and
transport or fly the Equipment to another hangar or facility on such terms as to cost as the parties may agree.

5. COSTS & PAYMENT

In consideration of WAPL’s provision of the Services and/or supply of the Parts, the Customer agrees to pay, without deduction or set off, the Costs within 30 days of the date of WAPL's invoice unless otherwise agreed in writing by a WAPL Authorised Officer.
The Customer acknowledges and agrees that if the Costs are not paid by the due date, WAPL shall be entitled to:
1. charge interest on overdue amounts from the date when it becomes due until the date payment is received, at a rate of 1.33% per month; and/or
2. stop supply and/or cease to perform any Services immediately under the Agreement in which event, WAPL will incur no liability to the Customer, and the Customer releases WAPL from any obligation to pay liquidated damages and/or milestone penalties that would otherwise apply; and/or
3. exercise a lien over the Equipment until all outstanding Costs owing on any account whatsoever, are paid in full; and/or
4. recover from the Customer all costs and legal costs (including Solicitor’s costs on a full indemnity basis) which WAPL may incur should WAPL take any steps to recover any money owing to WAPL pursuant to this Agreement or to enforce its rights pursuant to this Agreement
All amounts payable under this Agreement are expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Contract. In this clause 4.3, the terms “GST”, “Taxable Supply”, “Input Tax Credit” and “Tax Invoice” have the meaning given in the GST Law.
Prices are quoted in Australian Dollars ($AUD) unless otherwise specified.
Foreign currency orders must be paid in full in the currency invoiced.
Fees and charges must not be deducted from the payment amount and all applicable fees and charges must be paid by the customer.
All prices are based on the understanding that all options quoted would be ordered, supplied, delivered and installed (if applicable) at the same time. Walsh Avionics will not be liable for any damages or costs consequential or otherwise arising from its failure to deliver any or all services or Goods.
Price excludes the cost of any additional repairs required to any pieces of existing or associated equipment (other than what was quoted) in order to adequately conform or comply with any CASA requirement or regulation.
Price excludes any waiting time caused to Walsh Avionics’ technicians or its contractors in accessing the appropriate work place or site(s) to perform the work agreed by the customer, including but not limited to industrial action, strikes, lockouts, terrorism, unavailability of stock, accidents or breakdowns of plant or machinery.
LABOUR ESTIMATED/QUOTED IS NOT FINITE. If additional time is required due to complications, unforeseen circumstances, or additional and ad-hoc requests, the normal rate per hour will be charged.

6. TITLE & RISK

Title in all Parts supplied by WAPL (whether fitted to the equipment or not) remains with WAPL and no legal or equitable interest or property in any Parts supplied by WAPL will pass to the customer, until the Costs and all other amounts owing by the Customer to WAPL on any account whatsoever have been paid and there is no money owing by the Customer to WAPL for any other Parts delivered by WAPL, or on any account whatsoever.
Where WAPL has supplied Parts to the Customer and the delivery to the Customer has taken place, the Customer will hold the Parts in a fiduciary capacity as the Bailee for and on behalf of WAPL. The Customer will store the part separately from other goods owned by the Customer and shall identify them as Parts owned by WAPL. If the Parts (or any part of them) have been sold by the Customer prior to all monies due to WAPL having been paid, then the proceeds of the sale of the Parts (or any part of them) will be the property of WAPL and shall be held on a fiduciary basis and retained in a separate account payable to WAPL on demand.
The risk in the Parts will pass to the Customer on dispatch from WAPL’s facility.
Title in the Equipment (but not the Parts) remains with the Customer at all times. The Equipment shall at all times, while in the care, custody or control of WAPL, be at the risk of the Customer.

7. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)

For the purposes of this clause 6, the terms ‘financing statement’, ‘financing change statement’, ‘security agreement’ and ‘security interest’ have the meanings set out in the PPSA.
The Customer acknowledges and agrees that:
1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
2. a security interest is taken in all Parts previously supplied by WAPL to the Customer (if any) and all Parts that will be supplied in the future by WAPL to the Customer;
3. the security interest granted by the Customer to WAPL pursuant to these terms and conditions constitute a purchase money security interest as defined in section 14 of the PPSA.
The Customer agrees to do anything (including obtaining consents, signing or producing any further documents, and/or providing any further information) which WAPL asks and considers necessary for the purposes of:

4. Everything that WAPL is required to do under this clause 6 is at the Customer’s expense.

5. The Customer waives any rights it may have:

to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 134(1) and 135 of the PSSA;
under sections 137(2), 142 and 143 of the PPSA; and
to receive notice of the verification statement under section 157(1)(a).

6. The parties agree that sections 96 and 117 of the PPSA do not apply to these terms and conditions.

7. The Customer agrees that where WAPL has rights in addition to those under the PPSA, those rights will continue to apply.

8. The Customer acknowledges that it has received value as at the date the Parts are supplied by WAPL or the date the Parts are fitted and there is no agreement to postpone the time for the attachment of the security interest (as defined in the PPSA) granted to WAPL pursuant to the Agreement.

9. To the extent permitted by law, this clause will survive the termination of any agreement between WAPL and the Customer.

8. CONFIDENTIALITY

The terms of this Agreement and all information which is made available to or obtained by Customer from or in connection with this Agreement and which is not a matter of public knowledge or lawfully available from any other source will be and will remain confidential and will not, without the prior written consent of WAPL, be disclosed to any third person other than as may be required by law.

9. DELIVERY & STORAGE

WAPL is not obliged to make available for collection by the Customer any Parts and/or Equipment until such time as the Customer has made payment to WAPL in full of all Costs and any other amount owing by the Customer to WAPL pursuant to the Agreement.
WAPL will not be liable for any loss, damage, delay or non-delivery of the Parts and Equipment after such Parts and Equipment leave WAPL's facility whether or not they are delivered by WAPL, its agents or employees, however caused.
If the Parts and Equipment are not collected following notification pursuant to clause 8.1, WAPL may charge reasonable hangarage or storage charges from the date of such notification until collection. WAPL reserves the right to terminate any storage or hangarage arrangement upon the giving of 2 days’ notice to the Customer.
The Customer assumes responsibility for all costs of cartage, freight and insurance of Parts and Equipment from WAPL's facilities including the charges of WAPL.

10. ACCEPTANCE

Acceptance of the Parts and Equipment by the Customer will be deemed to have occurred upon delivery in accordance with clause 8.2.
If upon inspection the Customer finds any of the Services and/or Parts are not in conformity with this Agreement, it may within 14 days after delivery of the Services and/or Parts, acting reasonably:
1. reject the Services and/or Parts that are defective by notifying WAPL in writing, accompanied by evidence of the alleged defect; and/or
2. for a “major failure” (as defined under Australian Consumer Law):
  1. request a refund for the reduced value of the Services and/or Parts; or
  2. request WAPL to refund or replace the defective Services and/or Parts no additional charge to the Customer; or
3. for a “non-major failure” (as defined under Australian Consumer Law), request WAPL to repair the defective Services and/or Parts (or pay the cost of such repair).
The Customer must at all times follow WAPL's instructions and procedures in respect of the disposition and return of any Parts or Equipment the subject of any claim pursuant to clause 9.2.

11. INTELLECTUAL PROPERTY

Any intellectual property rights in, or relating to, the Parts or the Services remain in or vest upon its creation, as applicable, in WAPL (or where relevant, third parties) unless otherwise agreed in writing by a WAPL Authorised Officer. For the avoidance of doubt, this clause 10 does not derogate from any existing intellectual property right the Customer may have prior to the commencement of the Services.

12. WARRANTIES

The Customer warrants to WAPL that, if the Customer is not the owner of the Equipment, the Customer has the approval and consent of the owner as its agent to authorise both the performance of the Services and the fitting of the Parts, and agrees to accept liability for payment of the Services provided and/or Parts supplied under this Agreement.
WAPL warrants that the Parts will be of an acceptable quality.
WAPL will perform the Services with due skill and care.
The warranties provided under this clause 11 will not be honoured where:
1. any failure to conform is not notified to WAPL in writing within 14 days following supply of the Parts or completion of the Services;
2. the defect in material or fault in manufacture of the Parts is not notified to WAPL in writing within the Warranty Period;
3. the Customer causes them to become of unacceptable quality or fails to prevent them from becoming of unacceptable quality and they are damaged by abnormal use;
4. the Customer before acquiring the Parts examines them and that examination ought reasonably to have revealed that the Parts were not of acceptable quality;
5. the Parts are used, other than for the purpose stated in this Agreement;
6. the Parts are altered or modified without WAPL’s prior approval; and
7. the Parts are serviced other than by WAPL’s authorised personnel.
The Customer is responsible for the cost of all transport charges in respect of the return of any Parts and/or Equipment the subject of any claim pursuant to this clause 11 and the supply by WAPL of any substitute parts.
These warranties are in addition to other rights and remedies that are available to the Customer at law. The Parts come with guarantees and/or warranties from the manufacturer that cannot be excluded under the Australian Consumer Law.

13. INDEMNITY & LIABILITY

The Customer agrees to save, indemnify, defend and hold harmless WAPL against any action, claim, proceeding, demand, damages, cost, expense liability or loss (including costs on a solicitor/client basis), which WAPL may suffer or incur arising out of or in connection with this Agreement.
Notwithstanding any other clause in this Agreement, WAPL’s total liability in connection with this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise,
1. is limited at WAPL’s option to one of the following:
  1. in the case of the supply of Parts:
    1. the replacement, repair or refund of the Parts or the supply of equivalent Parts; or
    2. the cost of replacing or repairing the Parts;
  2. in the case of the supply of Services:
    1. the supplying of the Services again; or
    2. the cost of suppling the Services again,
2. but will not exceed the Fees paid by the Customer to WAPL in respect of the particular Parts or Services from which the claim arose, and the Customer will to the fullest extent permitted by law save, indemnify, defend and hold harmless WAPL from any claim or liability exceeding this amount, regardless of cause.
WAPL is not responsible to the Customer or any other party for any loss of revenue and profit, loss of anticipated revenue and profit, loss of business opportunity, loss of reputation, loss or goodwill, direct, indirect, consequential or inconsequential injury, loss or damage whatsoever by reason of any delay in delivery, deterioration, deficiency or other fault or harm in the Parts and/or Services supplied by or on behalf of or in any arrangement with WAPL and whether or not due to the negligence of WAPL, its servants or agents.

14. FORCE MAJEURE

If WAPL is prevented or hindered or delayed in performing its duties under this Agreement as a direct result of Force Majeure, such non-performance will not be considered a breach of this Agreement for the duration of the Force Majeure. In the case of Force Majeure, the parties will:
1. extend any timeframes specified in the Quotation or this Agreement to accommodate the delay.
2. use their best efforts to remedy the situation to the extent possible; and
WAPL will be entitled to deliver, and the Customer must take and pay for such part of the Parts and/or Services as can be delivered, while the Force Majeure event exists.

15. TERMINATION

WAPL may terminate this Agreement:
1. immediately on written notice if the Customer becomes bankrupt, is ordered to wind up, passes into liquidation or administration or has a receiver, manager or administrator appointed.
2. immediately on written notice if the Customer is in default of this Agreement and the default is not remedied within 14 days of receiving written notice to remedy the default; or
Upon termination of this Contract in accordance with clauses 14.1(a) and 14.1(b) the Customer must pay WAPL all amounts owing to WAPL up to the date of termination of this Agreement, including reasonable costs incurred by WAPL as a result of the termination of this Agreement (including third party cancellation fees and administrative costs).
The Customer may only terminate this Agreement or cancel all or part of an order with the written consent of WAPL.

16. GENERAL

This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.
Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.
This Agreement cannot be varied except in writing and signed by the parties, where a WAPL Authorised Officer has signed for WAPL. All notices and consents relating to this Agreement must be in writing.
The failure of either party to enforce any provisions under this Agreement will not waive the right of such party thereafter to enforce any such provisions. If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.
This Agreement is governed by, and construed in accordance with the laws of Western Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of Western Australia. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are expressly excluded from this Agreement.

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