1.1 These terms and conditions (“terms”) of trade apply to every contract with the Supplier subject to any written agreement by the Supplier to modify the same signed by the Supplier.
1.2 The terms are to be read in conjunction with any Special Conditions stated on the Supplier’s Order Form.
1.3 These terms shall apply notwithstanding the receipt, acknowledgment or acceptance by the Supplier of any Purchase Order issued by the Customer purporting to modify these terms.
2.1 The price invoiced on the Order Form is due and payable by the Customer on the date or dates specified on the Order Form or if no date is or dates are specified then on the supply of the Services and/or Parts to the Customer. If for any reason the Supplier is unable to provide all Services and/or Parts due to no fault on the part of the Supplier then the Supplier shall be entitled to a pro-rata payment of the amount invoiced in the Order Form for the Services and for the full amount for any Parts supplied.
2.2 If these terms are not adhered to an additional accounting charge at the rate of 3% on fortnightly outstanding balances will be added for each and every 14 day period the amount due remains unpaid and no further credit will be granted until all amounts have been paid in full.
2.3 Unless otherwise specified, sales tax, goods and services tax and any other applicable duties or charges imposed by any government or statutory authorities are additional to the price quoted and invoiced.
2.4 Where sales tax or goods and services tax is included in a quotation it is based on the rate ruling at the time of the quotation and any subsequent variation is to the Customer’s account. Where sales tax or goods and services tax is not included in a quotation the Customer is liable to pay the sales tax and or goods and services tax.
2.5 Any payment due by the customer for goods and services provided by this agreement is payable without set-off, counterclaim or demand.
3. Delivery of Parts
3.1 Unless otherwise specified, the Supplier may charge the Customer a delivery fee for all or any costs and expenses incidental to and arising out of the delivery of any Parts to the Supplier from any manufacturer or other supplier.
3.2 Unless otherwise specified, the Supplier may also charge the Customer a delivery fee for all or any costs and expenses incidental to and arising out of the delivery of Parts and Services to the Customer where delivery is to a place other than the Supplier’s premises.
3.3 Where the Parts are to be collected by the Customer from the Supplier’s premises then the Parts must be collected within 5 days from the date of notification from the Supplier to the Customer that the Parts are ready for collection. If the Parts are not so collected then the Supplier may charge the Customer a holding fee for non-collection of the Parts at the rate of 1% of invoice value per day for each day the Parts remain uncollected.
3.4 Delivery dates are approximate only. The Supplier is not liable for delay in delivery however so caused. Time for delivery is not of the essence. The Supplier may deliver in advance of the quoted delivery date (if any).
Risk in the Parts passes to the Customer either:- on collection of the Parts by the Customer; or at the time the Supplier notifies the Customer that the Parts are available for collection; or where the Parts are to be delivered to the Customer on leaving the Supplier’s premises.
5.1 Ownership of any of the Parts only passes to the Customer when the Customer pays all sums owing to the Supplier under this and any other Contract.
5.2 Where the Supplier delivers the Parts to the Customer and moneys are still outstanding to the Supplier, then, until the Parts are disposed of by the Customer in accordance with the provisions of this clause, the Customer agrees with the Supplier to keep the Parts as a fiduciary for the Supplier and, if required, store the Parts in a manner that clearly shows the ownership of the Supplier.
5.3 The Customer may sell the Parts to a third party in the normal course of business and deliver them to that third party whereupon:- If the Customer is paid by that party, the Customer holds the whole of the proceeds of sale of those Parts on trust for the Supplier; and If the Customer is not paid by that party, the Customer agrees, at the option of the Supplier, to assign his claim against that party to the Supplier upon the Supplier giving the Customer notice in writing to that effect.
5.4 For the purpose of giving effect to and perfecting the agreement specified in paragraph 5.3(b) the Customer irrevocably appoints the Supplier as his attorney.
5.5 The provisions of this clause apply notwithstanding any agreement, whether subsequent to this Contract or not, between the parties under which the Supplier gives the Customer credit.
The Customer or the Supplier repairs an object or makes a new object from the Parts;
The Customer or the Supplier mixes the Parts with other objects; or
The Parts become part of other objects; then
the ownership of the new object or the other objects immediately passes to the Supplier and the Customer is to hold the new object or other objects as a fiduciary for the Supplier.
5.7 The ownership of the new object or other objects passes to the Supplier at the beginning of the single operation or event by which the Parts are converted into a new object, is mixed or becomes part of another object (called the “New Object”).
5.8 Until the Supplier has been paid all monies owing under this or any other Contract, the Buyer agrees with the Supplier to keep the New Object as a fiduciary for the Supplier and, if required by the Supplier to store the New Object in a manner that clearly shows the ownership of the Supplier.
5.9 Delivery and Completion of Services
The Customer acknowledges and agrees that the Supply of any Services by the Supplier to the Customer for the installation, repair or maintenance of any object owned or in the possession of the Customer shall be in accordance with the design and specifications of the original manufacturer of the object wherever possible unless the Supplier is otherwise directed by the Customer.
5.10 Where the Customer requires the Supplier to design any object for installation, repair or maintenance purposes the Supplier shall have the right to require the Customer (at the Customer’s cost) to obtain such expert services as is necessary including engineer’s specifications or drawings in order to ensure that the design and specifications meet relevant safety standards. The Supplier does not hold itself out as having the necessary expertise and to the fullest extent permissible by the law accepts no responsibility for the design and specifications.
5.11 It shall be the responsibility of the Customer to provide wherever possible the specifications of the original manufacturer of the object and any manuals and other documents which relate to the object. These are to be provided to the Supplier prior to the provision of the Supply of the Services in relation to the object.
5.12 Where the Customer requires the object to be installed, repaired or maintained in any way which results in a modification of the manufacturer’s specifications for the object it shall be the responsibility of the Customer to ensure that such modification is legal and safe. The Supplier accepts no responsibility for modification to an object outside the manufacturer’s specifications unless the manufacturer has provided in writing approval for such modifications.
5.13 The Customer acknowledges that where the object is to be modified by the Supplier, the Supplier shall be indemnified by the Customer for any loss or damage which the Customer suffers as a result of the modification.
5.14 The Supplier shall use its best endeavours to supply the Services and Parts on the times and dates specified but shall not be liable for any delays whatsoever.
6. Liability of Supplier of Parts
6.1 Subject to Clause 8 the Supplier is not responsible or liable for:-
The workmanship of Parts supplied. However the Supplier shall use its best endeavours to ensure that the manufacturer of the Parts provides or assigns warranties in relation to the Parts to the Customer.
Any faults or defects in the Parts;
The quality and/or performance of the Parts which were purchased by the Supplier from the Manufacturer; or
Delay in performance or non-performance of this Contract directly or indirectly caused by fire, explosion, accident, flood, labour trouble, stoppage or strikes, shortages, acts of war of or hostilities by any Government or Government Agencies, inability to obtain suitable materials, equipment, fuel, power or transportation at current prices, or act of God or arising from contingencies happening or causes beyond the control of the Supplier.
6.2 Subject to Clause 8 any Parts or Services affected by any matters outlined in the preceding clause may be eliminated by the Supplier from this Contract without liability for breach thereof but this Contract shall otherwise remain unaffected.
7. Limitations and Exclusions
7.1 If the Customer is a “consumer” under the Trade Practices Act 1974 (and/or any equivalent state Fair Trading legislation) (“The Act”) then:-
The Customer’s rights under that Act are not excluded, restricted or modified by anything herein;
The Supplier’s liability for the supply of Parts and/or Services is limited to one or more of the following at the election of the Supplier:-
The replacement of the Parts or the supply of equivalent Parts and/or repair of the Parts;
The payment of the cost of replacing the Parts or acquiring equivalent parts or the payment of the cost of having the Parts repaired;
The supply of the Services again; or
The payment of the cost of having Services supplied again.
7.2 Parts not manufactured by the Supplier are supplied on the basis that the Supplier will assign to the Customer any rights under any warranty applicable to such Parts from the manufacturer and/or others and the Supplier is not liable for any loss or damage arising from any deficiencies or defect in such Parts except to the extent that the warranties are honoured by the original manufacturer.
7.3 Subject to this clause 8, the Supplier is not liable to the Customer for any loss or damages (including consequential loss) to the Parts, any object or other thing including any goods left by the Customer in the Supplier’s care and/or control or for the death or personal injury howsoever arising which is suffered or incurred by the Customer arising out of:-
Any act or omission (whether negligent or otherwise) by the Supplier while undertaking the supply of the Parts and or Services;
Any breach of any contract or any bailment or other obligation imposed on the Supplier in respect of the supply of the Parts and/or Services;
Any misuse, abuse or incorrect use or lack of or defective maintenance of any property of the Customer after delivery of the Parts and or Services; or
Faulty installation of any parts by any third person engaged by the Customer; or
Any representation as to the performance, the suitable application or use of the Parts or otherwise in respect of the Parts made by any employer or agent of the Supplier unless in writing signed by an authorised person for the Supplier.
7.4 Subject to this clause 8, any implied conditions, warranties and liabilities including liability for consequential loss and/or losses arising from negligence are hereby excluded.
8.1 The Customer will indemnify and save harmless the Supplier from and against any expense, claim, loss or damage arising from any loss or damage incurred by the Supplier because of any breach by the Customer of any of these Terms and Conditions or to the Supplier’s equipment or to property to person which occurs due to any act or omission by the Customer.
8.2 For the purposes of clause 9.1 “loss” includes consequential loss and any fine, levy, charge or any monetary imposition to which the Supplier becomes liable as an incident to the supply of Parts or Services and/or resulting by any breach by the Customer of this agreement.
9.1 The parties to this agreement consent to any dispute arising under or out of this agreement being subject to the nonexclusive jurisdiction of the courts of the State of Queensland, Australia.
10. Persons and Property
10.1 The parties acknowledge that for the provision of the Parts and/or Services one or more of the following may be necessary:
The operation of the object and any machinery part or device whatsoever connected to or in relation to the object.
The movement of the object by whatever means necessary whether on land and or on water and in whatever circumstances considered necessary and appropriate by the Supplier.
The carrying out of any rectification, alteration, adjustment, repair or installation as is in the Supplier’s opinion necessary to give effect to the Customer’s instruction.
Hiring, renting or leasing of suitable apparatus and or premises including hard stand from third party.
The obtaining of government statutory licences or approvals and/or compliance with a number of statutory and regulatory requirements.
10.2 The Customer agrees to and authorises the Supplier to:-
Take all action reasonably necessary to provide the Services and or supply the Parts;
Operate its machinery, parts, devices and/or the object whatsoever;
Move any object by what ever means necessary whether on land or on water and in whatever circumstances as the Supplier considers necessary and appropriate; and
Carry out any rectification, alteration, adjustment, repair or installation as is in the Supplier’s opinion necessary to give effect to the Customer’s instructions.
11.1 Risk of damage to or loss of the Works rest with the Customer from the date of this agreement.
11.2 Subject to the other terms of this Contract, the Supplier is not liable to the Customer for any loss or damage (including consequential loss) to the Works or the property of the Customer while in the care or control of the Supplier or for the death or personal injury howsoever arising which is suffered or incurred by the Customer arising out of:-
Any act or omission (whether negligent or otherwise) by the Supplier while undertaking the Works; or
Any breach of any contract or other obligation imposed upon the Supplier in respect by the Works undertaken by the Supplier.
11.3 The “Works” means all action reasonably necessary to supply the Services and or Parts and anything reasonably incidental thereto.
12.1 The Customer shall maintain in effect during the period whilst the property of the customer is in the care or custody of the Supplier all insurances appropriate to the property including its operation, including public liability insurance and worker’s compensation insurance.
13. Workplace Health and Safety
13.1 The Customer shall comply with and ensure that it and its employees, servants or agents comply with the Workplace Health and Safety Act or equivalent legislation whilst the Supplier is performing the Works and indemnifies the Supplier against any liability or responsibility in respect of any failure by the Customer or its employees, servants or agents to comply.
14. Hire, Lease or Licence
14.1 Unless otherwise agreed in writing, the Customer shall arrange for the necessary hire, lease or licensing of equipment and/or premises to enable the Supplier to provide the Services or Parts.
14.2 The Customer shall arrange for the Supplier to have all necessary access during working hours in order to carry out the Works.
15. Environmental Issues
15.1 The Customer shall ensure that it and or any other relevant person shall apply for and obtain and maintain all approvals, permits, licences and authorisations which may be necessary under the Environmental Protection Act Queensland 1994 and/or any other Environmental Legislation (“The Act”) for and in relation to the exercise of its rights and obligations under this agreement and to comply with all duties under the Act.
16. Intellectual Property
16.1 Where the Supplier designs an object or part of any object for construction, installation, repair or maintenance the intellectual property in the designs including drawings, tracings, reproductions and specifications shall remain the property of the Supplier unless otherwise agreed in writing. The Customer shall treat and maintain confidential and secret all designs.
17. Approval of Designs
17.1 It shall be the responsibility of the Customer to ensure that the designs meet the Customer’s specifications and requirements. For this purpose the Customer shall have the right to access the designs and to take copies.
18. Loss of Warranty
18.1 The Customer acknowledges that any modification to the Works and or Parts may result in the voiding of the warranties from manufacturers and/or others.
The Customer shall indemnify the Supplier for any loss or damage suffered by the Supplier arising from the voiding and or loss of such a warranty.
19.1 Any storage of Parts, other goods or objects for the Customer shall be as agent of the Customer and solely at the Customer’s risk and expense.
19.2 At the Supplier’s discretion the Parts, goods or object may be stored at any place and at any time and be removed from any place at which they may be stored or otherwise held to any other place to be stored.
19.3 Dangerous Parts, goods or objects held by the Supplier for storage will be subject to an indemnity from the Customer whereby the Customer indemnifies the Supplier against all loss (including consequential loss), damage or injury howsoever so caused arising out of the storage of the Parts, goods and or objects.
19.4 Where the Customer requires the Supplier to store Parts, goods and or objects the Customer shall provide an inventory of such things to the Supplier prior to the storage. The Supplier shall be entitled to check the inventory and provide its own inventory received at the time of receipt (but the Supplier shall be under no obligation to do the same). Where the Supplier provides the Customer with a copy of the inventory the Customer shall sign the inventory and such inventory shall be conclusive evidence of the things received by the Supplier. Such inventory shall disclose any visible items but not contents unless the Customer requires in which case the Supplier shall be entitled to make a reasonable charge for preparation of further inventory. Inspection of the things shall be at the Customer’s risk.
20. Dispute Resolution
20.1 If any dispute, controversy or claim shall arise out of or in respect of this Contract or the performance breach or validity thereof the parties shall refer the same to mediation administered by a person as the parties may determine by agreement on failing agreement a person nominated by the president of the Queensland Law Society.
21.1 The Customer cannot assign its interest in this Contract.
22.1 A party hereto shall be deemed to have received a document mentioned herein on the day such document is delivered or, if posted, on the second day after posting.
23.1 The Supplier shall be entitled to subcontract on any terms the whole or any part of the order for the supply of Parts and/or Services.