Terms and Conditions
1. GENERAL
1.1. These terms and conditions together with the Customer’s Order and the WBO T&Cs constitute the entire agreement between Nibav Lifts Private Limited (ACN 638 687 671) and its successors, transferees or related companies (Nibav Lifts) and the Customer for the supply of Work. No other terms and conditions will apply unless stipulated in writing by Nibav Lifts.
1.2. In these terms and conditions:
1.2.1. Agreement means these terms and conditions together with the Customer’s Order.
1.2.2. Customer means any person, party or entity who purchases Products and/or Services from Nibav Lifts;
1.2.3. Force Majeure means:
(a) war, hostilities, blockade, insurrection, invasion, act of foreign enemies;
(b) rebellion, terrorism, sabotage, strikes, revolution, insurrection, military or usurped power, or civil disturbance; and
(c) breakdown of machinery, flood, bushfire, washout, earthquake, landslide, cyclone, hurricane, epidemic or pandemic (including pandemic of a disease), typhoon, tidal wave or volcanic activity
or any other cause whether similar or dissimilar to any of the clauses or categories described above and which is beyond the reasonable control of the party experiencing the event;
1.2.4. Insolvency Event means any circumstance in which the Customer is unable to pay any amounts that have become due and payable and includes without limitation, liquidation, official management, administration, compromise arrangements, mergers, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, schemes, compositions or arrangements with creditors, insolvency, bankruptcy, or a similar procedure, or changes to the constitution of any partnership or person, or death;
1.2.5. Invoice means a tax invoice;
1.2.6. Order means the Scope of Works, any schedules and the order placed by the Customer in accordance with these terms and conditions;
1.2.7. Others has the meaning ascribed to it under the WBO T&Cs;
1.2.8. Product means any product sold and supplied by Nibav Lifts to the Customer, including elevators;
1.2.9. Site means the location where the Product is to be installed;
1.2.10. Services means activities and services necessary to manufacture and install Products at a Site specified by the Customer including any services to be undertaken by Nibav Lifts under this Agreement, and any services outlined in any Order;
2. ORDERS AND PRICING
2.1. By placing an Order, the Customer makes an offer to Nibav Lifts to purchase the Products and/or Services selected by the Customer on and subject to these terms and conditions. Nibav Lifts may choose to accept the offer at its discretion. If the Order is accepted, Nibav Lifts will notify its acceptance by issuing an Invoice to the Customer or in any other manner it prescribes.
2.2. All sales of Products and Services are made at the price for that Product or Services shown on Nibav Lifts’s quotation at the time of Order unless otherwise stipulated by Nibav Lifts in writing. Unless expressly stated to the contrary in the Order or an Invoice, all prices do not include transportation, insurance, delivery, installation, or any other disbursements which will be separately quoted and charged.
If any payment is made apart from the above-mentioned modes, Nibav Lifts shall not be held liable for such payment.
3.8. Interest applies on all overdue payments at the official interest rate of 18% p.a.
3.9. NOTE: The customer shall pursue independent advice from a legal professional adviser regarding this matter. Information provided by Nibav Lifts is of general nature and does not constitute a legal advice.
2.3. (Price variations) The price under an Order or for Works may be amended and varied by Nibav Lifts at its sole discretion as follows:
2.3.1. In accordance with the variations and additional charges incurred pursuant to the WBO T&Cs;
2.3.2. With 3 days’ written notice by Nibav Lifts (such notice may be provided by email to the Customer) upon the following circumstances (Price Change Notice):
A. An event beyond Nibav Lift’s reasonable control;
B. Force Majeure event;
C. Unavailability of Nibav Lifts or Other’s staff, employees, representatives or agents due to COVID-19 protocols or rules (such as illness and close contact isolation);
D. A change to the Works requested by the Customer;
E. Delay caused by the Customer or Others;
F. Failure by the Customer to obtain all necessary permits, approvals and registrations in respect of the installation of the Products and the performance of the Works at the Site;
G. If information provided by the Customer or Others has changed or is incorrect;
H. Foreign exchange fluctuations;
I. Change of laws, regulations, taxes or duties;
J. Change in the cost of freight, labour and material;
K. Change in the cost of the Products;
L. If Works are to be conducted outside Nibav Lifts standard work hours;
M. If a delivery is made 100km away from the city centre of the capital city of the State or Territory in which the Site is located;
N. Extreme or inclement weather;
O. The Site is not suitable for the Works including by way of example if the driveway is too steep, the ground is not ready, and if there are other tradespeople in the way or obstructing the path.
2.3.3. If in the course of the transaction, the customer requires any modification or upgradation in their present order, they may have to incur additional expenses subject to modifications in the price of the product, if any.
2.4. Any price or charges referred to in this Agreement and/or in any quotation are exclusive of Goods and Services Tax (GST) unless stated otherwise. The total price payable by the Customer for Work is subject to GST.
2.5. All Orders, once accepted by Nibav Lifts, are final and generally cannot be cancelled. However, with the approval and Nibav Lifts’s written consent and on terms which will indemnify Nibav Lifts against all losses, any cancellation shall be taken into consideration at the sole discretion of Nibav Lifts. The Customer acknowledges that the extent to which an Order can be modified or cancelled if at all, will depend on the type of work and the stage that the Order has reached in Nibav Lifts’s system. If any refund is initiated in such circumstances, the operational costs incurred in the process shall be deducted accordingly.
2.6. The Customer represents and warrants that, by submitting an Order to Nibav Lifts, it has the right and is duly authorised to submit an Order and to enter into this Agreement.
3. TERMS OF PAYMENT
3.1. Nibav Lifts shall render an Invoice after the completion of Work or any stage of Work from time to time.
3.2. payment is due in full on terms of net (15) fifteen days from date of issue of the Invoice unless any other arrangements have been made in writing.
3.3. Nibav Lifts reserves the right to set-off any amounts payable by the Customer against any amounts payable by the Customer.
3.4. If the Customer does not pay any amount payable pursuant to this Agreement (including but not limited to pursuant to an Invoice) by the due date:
3.4.1. At Nibav Lifts’s request, the Customer must pay Nibav Lifts the amount of any reasonable costs incurred by it in pursuing payment of the unpaid amount (such as the costs of debt collectors or solicitors incurred by Nibav Lifts).
3.5. If the Customer defaults in payment of any Invoice when due, the Customer shall indemnify Nibav Lifts from and against all loss and damage in respect of any recovery action including without limitation all solicitors’ fees (on an indemnity basis), commercial agents’ commission, out of pocket expenses, bank fees, freight, insurance (collectively referred to as fees) and interest.
3.6. If the Customer defaults in payment of any Invoice when due, Nibav Lifts may, without prejudice to Nibav Lifts’s other rights, either suspend further deliveries, require payment in advance for all such deliveries or terminate this Agreement or any other agreement with the Customer by written notice to the Customer.
3.7. Mode of Payment: It is strictly adhered to the customer that any payment made to Nibav Lifts should be in any of the following manner:
3.7.1. NEFT, RTGS, CHEQUE AND DEMAND DRAFT OR ANY OTHER WIRE TRANSFER, made in favour of NIBAV LIFTS INC.
Any other mode of payment or cash transactions is strictly prohibited in any manner or any capacity whatsoever. If any payment is made apart from the above-mentioned modes, Nibav Lifts shall not be held liable for such payment.
3.8. Interest applies on all overdue payments at the official interest rate of 18% p.a.
3.9. NOTE: The customer shall pursue independent advice from a legal professional adviser regarding this matter. Information provided by Nibav Lifts is of general nature and does not constitute a legal advice.
4. DRAWINGS & TECHNICAL INFORMATION
4.1. The Site specific drawings and elevator finishes must be agreed and signed off by the Customer before the Works commence (including the production of the Product). Nibav Lifts will provide the technical drawings containing all measurements for the work required by Others.
4.2. In respect of drawings, the Customer agrees and acknowledges:
1. All information, including descriptions, photos or drawings from the sales representative, brochures, website or information leaflets are superseded by the information in this contract and only be superseded by the final site specific approved drawings (includes changes requested by the customer).
2. Nibav Lifts will provide two revisions of the drawings free of cost. Any further revisions will cost $250 + GST per new drawing.
5. COLOURS AND FINISHES
5.1. In respect of Product colours and finishes, the Customer acknowledges and agrees:
1. that the actual Product may be different to the samples displayed to the Customer before entering into this Agreement;
2. the differences may include variation in pattern, consistency, and texture from the sample or picture(s) shown or denoted in our online product brochures, renderings and other displays;
3. Products made from different materials and objects can differ in colour due to variations in raw materials, batch colouring and others external factors.
6. INSTALLATION CUSTOMER REQUIREMENTS AND SITE COMMENCEMENT
6.1. The Customer agrees to allow for the installation of the equipment in one continuous operation, during normal working hours. Any event not attributable to Nibav Lifts that interferes in such continuous operation, shall entitle Nibav Lifts to extend the Schedule as appropriate and claim additional costs caused by the same.
6.2. The Customer warrants and agrees that it will have all have all necessary approvals and permits for the installation of the Product at the Site.
6.3. The Customer must comply with all occupational health and safety laws and regulations in respect of the Site. The Customer releases Nibav Lifts from any cost or liability in respect of this.
6.4. The Customer agrees to provide adequate facilities, safe access and passage for Nibav Lifts (including its employees, officers, agents and contractors) in relation to any on-site installation, or any other Services conducted on the Customer’s premises or any other location nominated by the Customer for the provision of the Services.
6.5. The Customer shall be responsible for, and liable for any costs whatsoever associated with, there being insufficient safe access or adequate facilities for the conduct of the Services.
6.6. (Ready to Use) The Customer is not entitled to use the Product under any of the following circumstances:
6.6.1. For any purpose whatsoever before the formal written handover certificate is provided by Nibav Lifts;
6.6.2. If the Customer has not made full and final payment under this Agreement; and
6.6.3. The Building construction is not ready.
7. WORKING HOURS
7.1. Nibav Lift’s working hours and working days shall be, excluding any public holidays, Monday to Friday from 7:00 am to 3:00 pm and may be varied only with Nibav Lift’s written agreement. Any compression or overtime works are deemed to be a variation of the price.
8. PRODUCTION, DELIVERY AND RISK
8.1. The Customer acknowledges that the Product can only be sent for production after all the following criteria have been met:
8.1.1. Estimated time provided in the Order are confirmed by Nibav Lifts;
8.1.2. Nibav Lifts has provided written approval of the order form;
8.1.3. The Site ready form, finishes of the lift car and doors, push buttons, indicators and all other items in relation to the Product have been selected and confirmed; and
8.1.4. All payments required to be made by the Customer have been received by Nibav Lifts.
8.2. Risk in the Products shall pass to the Customer upon delivery to the Customer.
8.3. Nibav Lifts must deliver the Product to the delivery address specified in the relevant Order.
9. DELAY
9.1. All quoted delivery and installation dates for Works are estimates only and Nibav Lifts has no obligation to meet such dates. In the event that any delay in delivery is caused by circumstances beyond Nibav Lifts’s reasonable control, Nibav Lifts may suspend or delay delivery without consequence and without relieving the Customer of its obligations.
9.2. If delivery cannot be made to the location specified due to the nature of the premises, insufficient access or for any reason not attributable to Nibav Lifts, including the Customer’s absence, the Customer will be liable for any additional delivery charges and costs including redelivery.
9.3. If the Customer is unable to accept delivery of Products within 4 weeks of the delivery date, the Customer shall be liable to Nibav Lifts for storage and insurance costs.
10. NOTIFICATION OF CLAIMS AND TIME BAR
10.1. Any claim for damage to Products must be notified in writing to Nibav Lifts within 30 days of delivery or installation of the Products.
10.2. Any claim for loss or non-delivery of Products must be notified in writing to Nibav Lifts within 90 days of the date upon which the Products should have been delivered.
10.3. Nibav Lifts shall be discharged from all liability whatsoever in connection with the Services and/or the Products unless legal proceedings are served upon Nibav Lifts within 6 months from delivery of the Services (delivery in respect of Services means when the Services have been performed in accordance with the requirements of this Agreement) and Products.
11. SAFETY AND USE
The Customer agrees that:
11.1. the Customer has received adequate information regarding the Products to ensure their safe use and handling, which may include Nibav Lifts’s user guides or manuals applicable to the Products;
11.2. all Products must be properly used in accordance with all applicable laws and instructions provided in any applicable user guides or manuals.
11.3. the purchase and/or use of all Products sold by Nibav Lifts places the responsibility of use on the user of the Products and Nibav Lifts accepts no responsibility for inappropriate use; and
12. TITLE AND PERSONAL PROPERTIES
12.1. Ownership of the Products will remain with Nibav Lifts until all Invoices, interest and fees owing by the Customer to Nibav Lifts on any account whatsoever (Amounts Owing) have been paid in full.
12.2. Until the Amounts Owing have been paid in full, the Customer holds the Products as trustee for Nibav Lifts.
12.3. Until the Amounts Owing have been paid in full, the Customer has the right to sell the Products, but only as trustee for Nibav Lifts (and the Customer must not represent to any third parties that it is acting as Nibav Lifts’s agent) and the Customer must hold the proceeds it receives from any such sale as trustee for Nibav Lifts.
12.4. If the Customer fails to comply with any of terms and conditions of this Agreement then:
12.4.1. upon request, the Customer must return all Products in its possession;
12.4.2. Nibav Lifts may enter the Customer’s premises and seize possession of the Products; and
12.4.3. Nibav Lifts may retain, sell or otherwise dispose of those Products.
13. EXCLUSIONS & LIMITATION OF LIABILITY
13.1. With the exception of Non Excludable Rights and any express written warranty provided by Nibav Lifts, and notwithstanding any other provision of these terms and conditions, the liability of Nibav Lifts to the Customer, whether arising under or in connection with these terms and conditions or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort (for negligence or otherwise), or on any other basis in law or equity is hereby limited and excluded as follows:
13.1.1. Nibav Lifts shall not have any liability whatsoever to the Customer for any loss, claim, injury or damage (including but not limited to any consequential or indirect damages including loss of revenue, loss of production, loss of product, loss of contract or loss of profit) of any kind howsoever arising in connection (indirectly or directly) with these terms and conditions, a Customer’s Order, the Products, the Services, and/or the Work; and
13.1.2. the total aggregate liability of Nibav Lifts is at all times limited to the amount equal to the purchase price of the Works.
13.2. If any Non-Excludable Terms apply, then to the extent to which Nibav Lifts is entitled to do so, its liability under those Non Excludable Terms will be limited at its option to:
13.2.1. the replacement of the Products or the supply of equivalent products and Services; or
13.2.2. the repair of the Products or Services; or
13.2.3. the payment of the cost of replacing the Products, or of acquiring equivalent products or the Services; or
13.2.4. the payment of the cost of having the Products repaired.
13.3. Subject to clause 13.1 and any express written warranty provided by Nibav Lifts, Nibav Lifts does not make any guarantee, condition or warranty as to materials, workmanship or performance of the Work.
13.4. Any advice, recommendation, information or representation provided by Nibav Lifts as to the quality or performance of the Products, the Services or their suitability for a particular use, purpose or otherwise in relation to the Products or Services is given in good faith but without any liability or responsibility on the part of Nibav Lifts. The Customer acknowledges that it has not relied upon or been induced by any representation by Nibav Lifts.
14. INDEMNITY & RELEASE
14.1. The Customer indemnifies and releases Nibav Lifts and its agents and assigns, regardless of any negligence on the part Nibav Lifts, on a full indemnity basis, from and against any costs, liability, damage, loss, expense or demand arising directly or indirectly from:
14.1.1. a breach of this Agreement by the Customer;
14.1.2. any false, misleading or deceptive representation or statement made by the Customer in respect of the Products or Services to any person; and
14.1.3. any claims, or losses incurred, by third parties (including employees, associates, agents or contractors of the Customer) in relation to the Work or any Others;
14.2. The indemnity and releases in this clause 14 shall survive and continue beyond the expiry of this Agreement.
15. INTELLECTUAL PROPERTY
15.1. All trade mark, copyright, design right, registered or unregistered patents and other intellectual property or intellectual property rights in any design, specification, process, method of working, technology, guides, manuals, or other materials or information relating to the Products and Services shall vest for all time in Nibav Lifts.
16. FORCE MAJEURE
16.1. Nibav Lifts will not be in default in the performance of its obligations, or be liable to the Customer for any failure or delay in the performance of its obligations, to the extent that such failure or delay is caused by an event of Force Majeure, provided that Nibav Lifts advises the Customer of the circumstances constituting the Force Majeure.
16.2. In the event of a delay arising from an event of Force Majeure, the time of the performance of the obligation shall be extended by a period of time reasonably necessary to overcome the effect of the delay.
16.3. If a Force Majeure event continues for 60 consecutive days, Nibav Lifts may terminate the Works by giving written notice to the other party, without incurring any liability to the Customer by reason of such termination.
17. CHANGE OF OWNERSHIP
17.1. The Customer agrees to notify Nibav Lifts in writing of any changes of ownership of the Customer within 7 days from the date of such change and indemnifies Nibav Lifts against any loss or damage incurred by it as a result of the Customer’s failure to notify Nibav Lifts of any change.
18. TERMINATION
18.1. Nibav Lifts may terminate the Work at any time before the Work is provided by giving written notice to the Customer.
18.2. Without prejudice to any other remedies Nibav Lifts may have, if at any time:
18.2.1. the Customer is in breach of any obligation to Nibav Lifts (including those obligations relating to payment); or
18.2.2. in Nibav Lifts’s opinion, the Customer will be unable to meet its payments as they fall due; or
18.2.3. an Insolvency Event occurs,
Nibav Lifts may suspend or terminate the performance of Works to the Customer and of any other obligation of Nibav Lifts under these terms.
19. TERMS OF CANCELLATION
19.1. In the event of order cancellation, specific proportions of the total price will be retained at various stages.
25% within the initial 24 hours of receiving the quotation,
60% once production has started,
85% when the order is prepared for dispatch and
100% upon the completion of the delivery.
20. DISPUTE RESOLUTION /ARBITRATION
20.1. DISPUTES:
20.1.1. All disputes between the parties relating to this Agreement or the performance of any obligations under this Agreement will be promptly settled by the parties at the site level. However, where these matters are not attended to within 14 (fourteen) days of the dispute arising:
Any of the parties may, by written notice to the other party, refer the dispute to the respective senior managers of each party for action.
Having any matter unresolved by the respective senior managers within 14 (fourteen) days, it may be referred to arbitration for determination, which will be legally binding on both parties.
Either party may initiate the appointment of the arbitrator.
20.2. COST OF ARBITRATION:
Both parties understand that:
The costs of the arbitration will be met equally by the parties unless the arbitrator states otherwise. Either party shall be entitled to be represented by a legal practitioner. The parties further agree that the arbitrator shall be entitled to award costs for the legal representation, and such costs shall be calculated on a solicitor’s own client basis.
21. CONFIDENTIALITY
The terms of the Offer and the Contract, together with these Ts & Cs, shall remain confidential and shall only be used by the Customer for its intended purpose and that is the analysis of Nibav Lifts’ offer for which the same was asked from Nibav Lifts.
Neither Party shall disclose nor permit the disclosure of any information, in whatever format, relating to the Offer without the prior written consent of the other Party.
Notwithstanding the above, the Customer grants Nibav Lifts, the unlimited right to publish reports on the project both via internal and external communication channels. The right of publication under the preceding sentence includes, but is not limited to, the right to publish the project in internal and external presentations, brochures, advertising materials, images, videos, press releases, newspaper articles and social media (hereinafter jointly referred to as “Publication”). Regarding Publication via external communication channels, Nibav Lifts shall inform the Customer in good time of the Publication and date thereof. In the event of good cause, the Customer may propose changes to the type and design of the Publication. If the Customer has not requested Nibav Lifts in writing to change the Publication at least within 5 working days before the announced date of Publication, the Publication shall be deemed to be approved by the Customer.
22. GENERAL
22.1. (Entire agreement) This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
22.2. These terms and conditions are governed by and construed in accordance with the laws of the state of TamilNadu, India.
22.3. Any disputes arise with respect to this agreement will have jurisdiction at Chennai courts only.
22.4. Should any part of these terms and conditions be held to be void or unlawful, such part is to be read and enforced as if the void or unlawful part had been deleted.
If no method of notice or communication is stipulated under this Agreement then notices or communications must be made by email or by certified or registered mail with postage prepaid, by hand delivery, or such other address or person as a party may specify by notice in writing to the other. All such notices or communications shall be deemed to have been duly given or made:
22.4.1. if sent by email, when sent to the addressee; or
22.4.2. when delivered by hand; and
22.4.3. in the normal course of post, after being deposited in the mail with postage prepaid.
22.5. No rights may be assigned by the Customer without Nibav Lifts’s written consent, which may be given or withheld in Nibav Lifts’s absolute discretion.
22.6. The terms and conditions of this Agreement and all communications between Nibav Lifts and the Customer relating to the subject matter of this Agreement are and shall remain confidential.