Common use of Defects and Warranties Clause in Contracts

Defects and Warranties. 14.1 The Client must inspect all Works on completion (or the Materials on delivery) and must within seven (7) days of such time notify the Contractor in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quote. The Client must afford the Contractor an opportunity to inspect the Works within a reasonable time following such notification if the Client believes the Works are defective in any way, and an exclusive right to offer remedy where the Works are found to be defective. If the Client shall fail to comply with these provisions, the Works shall be presumed to be free from any defect or damage. For defective Works, which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) rectify or re-provide the Works. 14.2 Subject to the conditions of warranty set out in clause 14.3, the Contractor warrants that if any defect in any workmanship of the Contractor becomes apparent and is reported to the Contractor within three (3) years of the date of completion/delivery (time being of the essence) then the Contractor will either (at the Contractor’s sole discretion) replace or remedy the workmanship.‌ 14.3 The conditions applicable to the warranty given by clause 14.2 are: (a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through: (i) failure on the part of the Client to properly maintain any Materials in accordance with the Contractor’s “Handover Manual” and the manufacturer’s documentation; or (ii) failure on the part of the Client to follow any instructions or guidelines provided by the Contractor; or (iii) any use of any Materials otherwise than for any application specified on a quote or order form; or (iv) the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or (v) fair wear and tear, any accident or act of God. (b) the warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Contractor’s consent. (c) in respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim. 14.4 For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.

Defects and Warranties. 14.1 (a) The Client must Customer shall inspect all Works the goods on completion (or the Materials on delivery) delivery and must within seven (7) days of such time notify the Contractor report any defective goods in writing of to ARK within 7 working days. That report shall clearly specify any evident defect/damage, error or omissionalleged defects, shortage in quantity, quantity or failure to comply with the description or quotedamage. The Client must Customer shall afford the Contractor ARK an opportunity to inspect the Works alleged damage or defect within a reasonable time following such 14 working days from date of written notification if and give ARK the Client believes opportunity to make good any defective goods within 14 working days of the Works are defective in any way, and an exclusive right to offer remedy where the Works are found to be defective. If the Client shall fail to comply with these provisions, the Works shall be presumed to be free from any defect or damage. For defective Works, which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) rectify or re-provide the Worksinspection by ARK. 14.2 Subject (b) To the extent required by statute and subject to the conditions of warranty set out in clause 14.3, the Contractor 6(c) ARK warrants that if any defect in any workmanship of the Contractor becomes goods is apparent and is reported to the Contractor ARK within three twelve (312) years months of the date of completion/delivery (time being of the essence) then the Contractor will either (at the Contractor’s ARK, in its sole discretion) replace or remedy the workmanship.‌ 14.3 The conditions applicable to the warranty given by clause 14.2 are, will either: ( i) repair or replace the goods or supply equivalent goods, or ( ii) pay the cost of replacing the goods or acquiring equivalent goods, or ( iii) pay the cost of repairing or replacing the goods, in all cases, where payment in full has been made by the Customer. (ac) the The warranty in this clause 6 shall not cover any defect or damage which may be caused or partly caused by or arise through: (i) failure on the part of the Client Customer to properly maintain any Materials in accordance with the Contractor’s “Handover Manual” and the manufacturer’s documentationgoods; or (ii) failure on the part of the Client Customer to follow any instructions or guidelines provided by ARK or the Contractormanufacturer; or (iii) any unauthorised or incorrect use or installation of any Materials otherwise than for any application specified on a quote or order form; goods, or (iv) the continued use of any Materials goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or (v) fair wear and tear, any accident or act of Godforce majeure. (bd) the The warranty shall cease and the Contractor ARK shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is goods are repaired, altered or overhauled without the Contractor’s consentconsent of ARK. (ce) in respect of all claims the Contractor shall ARK will not be liable to compensate the Client for any delay charges incurred by the Customer for rectification of luminaires, either during the installation or warranty period, unless such charges have approved in either replacing or remedying the workmanship or writing in properly assessing the Client’s claimadvance by ARK. 14.4 (f) This warranty shall not apply to light sources (lamps/globes) whether supplied separately or as part of a luminaire, unless a manufacturer’s warranty applies, in which case the Customer shall claim directly from the manufacturer. (g) For Materials goods not manufactured by the Contractor, ARK the warranty shall be the current warranty provided by the manufacturer of the Materialsgoods. ARK shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty. (h) Nothing in these terms is intended to have the effect of enabling ARK to contract out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts. The Contractor shall Customer’s attention is drawn to the following mandatory wording in terms of the Australian Consumer Law: (i) “Our goods come with guarantees that cannot be bound by nor be responsible excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any term, condition, representation other reasonably foreseeable loss or warranty other than that which is given by damage. You are also entitled to have the manufacturer goods repaired or replaced if the goods fail to be of acceptable quality and the Materialsfailure does not amount to a major failure.”