DEFINITIONS AND INTERPRETATIONS
1.1. The following words have the following meanings-
Merchant: The person giving the quotation or offering services
Customer: The person so named on the tender offer, quote or contract.
Standard Terms: These terms and conditions
Person: Includes a corporation, partnership and firm Guarantor: The Person named on the tender offer, quote or contract and any person signing for and on behalf of the customer
Loss or Damage: Includes without limitation, loss or damage caused by the negligence or wilful act or default of the Merchant or any other person whether or not such loss or damage is foreseeable or contemplated by the merchant
Contract works: The supply of goods and/or the provision of services as detailed on the tender offer, quote or contract
1.2. These standard terms:-
1.2.1. apply to the exclusion of any other conditions;
1.2.2. become binding upon the customers acceptance in the form of either a signed tender offer, signed schedule of equipment or the issuance of an order (be it purchase, works or otherwise);
1.2.3. can only be varied by subsequent written agreement of the merchant.
2. GENERAL CONDITIONS
2.1. This quotation is on the Merchants standard terms and is:-
2.1.1. subject to currency rate and metal index fluctuations;
2.1.2. valid for 14 days unless varied or withdrawn before acceptance;
2.1.3. exclusive of sales tax or GST of any kind;
2.1.4. based on the merchant (where necessary) obtaining unobstructed access to the Customer’s premises or worksite at times convenient to the Merchant;
2.1.5. based on the Merchants standard working week of 40 hours.
3. MERCHANTS OBLIGATION
3.1. The Merchant will carry out the Contract works in accordance with the Merchants usual practice and these standard terms in exchange for the Contract sum.
4. CUSTOMERS OBLIGATIONS, WARRANTIES AND AUTHORISATIONS
4.1. The Customer will:-
4.1.1. give the Merchants representatives unobstructed access to the premises or vessel for the entire contract and warranty period;
4.1.2. notify the merchant in writing of any change in the Customers structure or shareholding and until such notice is given, will remain liable to the Merchant until the Merchant is paid in full as if such change had not taken place;
4.1.3. not tamper with, utilise, operate or modify any of the Contract works, prior to the completion of the Contract works without the Merchants written consent;
4.1.4. give the Merchant a Directors guarantee (in the case of a corporation) or a bank guarantee or a deposit and progress payments in advance as set out on the reverse;
4.1.5. provide the Merchant with the proper tax exemption certificate (if claiming tax exemption) at the time of signing this contract or issuing an order.
4.2. The Customer authorises the Merchant to:-
4.2.1. enquire of credit reporting agencies as to the credit and financial position of the Customer;
4.2.2. have all or any of the Contract works supplied by a sub-contractor.
4.3. The Customer warrants that:-
4.3.1. the person executing this contract on its behalf has the authority to do so;
4.3.2. it has not been induced or influenced to enter into this agreement by:-
4.3.2.1. any statements or representations made by or on behalf of the merchant relating to
4.3.2.1.1. time of delivery,
4.3.2.1.2. performance characteristics of goods (except as expressly set out in writing),
4.3.2.1.3. availability of finance for the purchase of the Contract works;
4.3.2.2. any other conduct or inducement of, or on behalf of, the Merchant;
4.3.3. all information given by it to the Merchant is correct;
4.3.4. it has the financial capacity to meet its obligations and to make the payments hereunder;
4.3.5. it will comply with all applicable laws;
4.3.6. it owns any intellectual property in any plans, specifications, product profile drawings and other material given to the Merchant;
4.3.7. there are no collateral contracts between it and the Merchant in connection with the contract works.
4.4. The Customer indemnifies the Merchant against:-
4.4.1. any loss of damage (including consequential loss) suffered by the Merchant arising directly or indirectly out of any breach of the Customers warranties, obligations or authorities;
4.4.2. all claims arising from incorrect Sales Tax or GST information.
5. VARIATIONS
5.1. The Merchant may without notice to the Customer make minor variations to the Contract works to:-
5.1.1. improve or modify them; or
5.1.2. substitute a component with one of equivalent quality provided this does not affect detrimentally the performance or function of the Contract works.
5.2. The Customer may request a variation of the Contract works and if the Merchant agrees to it shall carry out the variation requested and invoice the Customer at the rate of:-
5.2.1. The Merchants current service work charge out rate for any additional labour and the Merchants cost price of the materials used plus an additional 30% mark up.
5.3. The cost of any variation is payable in accordance with clause 6.
6. PAYMENT
6.1. The Customer will pay the Merchant:-
6.1.1. 10% deposit and progress payments in advance on account of the Contract sum as required to meet the construction schedule; and
6.1.2. payments for variations under clause 5.2.
6.2. The Customer is also responsible for:-
6.2.1. any liability imposed under any import license and/or import duty shall be at the expense of the Customer; and
6.2.2. any increases in exchange rates or metal indices;
6.2.3. any overtime requested by the Customer and accepted by the Merchant at the applicable Award Overtime Rates;
6.2.4. all costs incurred by the Merchant in recovering any payments due and payable hereunder;
6.2.5. sales tax or GST unless an exemption acceptable to the Taxation Department is provided.
6.3. Payments tendered by cheque are not deemed to be made until paid by the Drawers Bank.
6.4. Accounts are payable on demand unless an alternative arrangement has been agreed to in writing by the Merchant.
6.5. If any payment is not received on the due date, the Merchant reserves the right to:-
6.5.1. withdraw any credit extended to the Customer;
6.5.2. suspend delivery or performance of the Contract works without liability or penalty;
6.5.3. take proceedings for debt recovery without further notification;
6.5.4. charge daily compounding interest at the rate of 0.0987% per day on any amount outstanding until receipt of payment,;
6.5.5. charge a late payment administration fee. 6.5.6 recover from the Customer any and all costs incurred by debt recovery.
6.6. If the Customer fails either to pay any monies due and owing on the due date or to perform any provision of this contract after the Merchant gives seven (7) days written notice to remedy the default; or
6.6.1. becomes bankrupt or insolvent; or enters into any Deed of Assignment or composition with his creditors; or goes into liquidation; or becomes subject to official management; Then (without prejudice to any other right or remedy) all moneys payable hereunder to the Merchant become immediately due and the Merchant may:-
6.6.2. terminate this Agreement and/or suspend any further delivery to the Customer; and/or
6.6.3. appropriate any payment made by the Customer to such of the Progress Payments or other payments hereunder as the Merchant thinks fit (notwithstanding any purported appropriation by the Customer).
7. ROMALPA CLAUSE
7.1. Until payment is made in full of all moneys payable hereunder, the Merchant:-
7.1.1. retains all equitable and legal title to all Contract works; and
7.1.2. may take possession of all of the Contract works in the Customers possession; and
7.1.3. may enter the Customers vessel or premises to repossess the Contract works.
7.2. Until the Merchant is paid in full for the goods, the Customer:-
7.2.1. remains a fiduciary of the Merchant;
7.2.2. holds the contract works as Bailee for the Merchant;
7.2.3. will not sell or encumber the Contract works nor shall the vessel or other object of which the contract works form part be sold or encumbered;
7.2.4. will account to the merchant for the proceeds of any sale of the Contract works otherwise than in accordance with this clause.
8. WARRANTY CONDITIONS
8.1. The Contract works are sold with :-
8.1.1. the Merchants standard warranty; and
8.1.2. any implied conditions or warranties imposed by the Trade Practices Act 1974 and the Fair Trading Act 1989, which the Merchant cannot lawfully exclude; and
8.1.3. NO OTHER WARRANTIES OR GUARANTEES.
8.2. Subject to clause 8.3 the Merchant warrants that:
8.2.1. if any defect is discovered within the 6 month warranty period; and
8.2.2. if the Merchant is satisfied that the defect is due to an inherent defect of faulty material or workmanship; and
8.2.3. if the Customer has not had any other person attempt to remedy the alleged defect (without the Merchant’s written consent); and
8.2.4. if the Customer has notified the Merchant in writing upon discovery of the defect (and within 7 days); then The Merchant will repair or replace the defective part of the Contract Works (as the Merchant in its absolute discretion determines) without charge provided that the defective part is returned freight paid to the Merchant.
8.3. The Merchant gives no warranty on any components not made by the Merchant but will use its best endeavours to transfer to the Customer the benefit of any applicable manufacturers warranty.
8.4. The Merchants warranty does not apply to:-
8.4.1. Defects due to misuse or abuse;
8.4.2. Contract works * which have been altered or added to without the Merchants prior written consent; or * repaired or serviced by any person except the Merchant; or * used for purposes other than those for which they were designed; or * for which full payment has not been made.
8.5. Warranty work is carried out at the Merchants premises or other place nominated by the Merchant (at the Merchants absolute discretion). The Customer will pay for any and all costs associated with carrying out warranty work away from the Merchants premises. These costs shall include but not be limited to:-
8.5.1. transportation, transfers, taxes, visas, passports, inoculations, freight, accommodation, meals, phone, fax and e-mail fees, and wages whilst in transit including overtime as required.
8.6. The Merchant will not be liable for:-
8.6.1. any loss or damage which is consequential, indirect or due to circumstances beyond the Merchants reasonable control;
8.6.2. any liability in excess of the purchase price of the Contract works.
8.7. At no time does the Merchant guarantee the Customer a minimum number of working hours per week will be spent on the Contract works.
9. LIMITATION OF MERCHANTS LIABILITY
9.1. Subject to clause 8.2 and 9.2:-
9.1.1. the Merchant is not liable to the Customer for any loss or damage (whether liquidated or unliquidated and including consequential loss or damage) either to the Contract works or to any property left by the Customer in the Merchants care or control or for death or personal injury howsoever arising which is suffered or incurred by the Customer arising out of: – A) any act or omission (whether negligent or otherwise) by the Merchant; or B) any breach of any contractual or other obligation imposed on the Merchant in respect of the Contract works; C) any implied conditions or warranties or liabilities.
9.2. If the customer is a “consumer” under the Trade Practices Act 1974 (and/or any equivalent State legislation) (“the Act”) then:-
9.2.1. nothing herein restricts, excludes or modifies the Customers rights under that Act; and
9.2.2. where the Act permits, the Merchants liability hereunder is limited to any of the following as determined by the Merchant: – A) if the breach relates to goods:- i) the replacement of goods or the supply of equivalent goods; ii) the repair of such goods; and B) If the breach related to services:- i) the supplying of the services again.
9.3. The Merchant is not liable or responsible for:-
9.3.1. any failure to deliver on the delivery date or meet any other time limit; or
9.3.2. any loss or damage to the Contract works where the Merchant is arranging for the shipping of the same to the Customer on the Customers behalf; or
9.3.3. for any loss or damage arising from any deficiency or defect of any components except to the extent that any warranty on them, be honored by the original manufacturer.
9.4. The Customer acknowledges and agrees that:
9.4.1. after delivery, operation and maintenance of the goods is beyond the Merchant’s control and the Merchant is not responsible for any loss, damage, injury, expense or other consequences, howsoever arising, from it or from any misuse or abuse by the Customer;
9.4.2. the Merchant is not liable or responsible for any representation by any employee or agent (except the manager or a director or the Merchant confirmed in writing) as to performance, suitability, application or use of the goods;
9.4.3. it does not rely on, and waives any claim for breach of, any representations, which are not confirmed in writing.
9.5. Subject only to clause 7.2 above, the Customer undertakes and agrees to indemnify and hold harmless the Merchant against all actions, claims proceedings, costs, losses and damages whatever and however caused or arising which the Merchant may sustain, incur or pay, in connection with or arising from any of the provisions of the contract works by the Merchant, in connection with or resulting from this contract or breach of it including without limitation all actions, claims or proceedings occasioned as a result of the negligence of the Merchant.
9.6. The Customer is not entitled to any retention or liquidated damages.
9.7. If any action is brought against the Merchant’s employees, agents or subcontractors by the Customer arising out of the construction or supply of the goods by the Merchant, the Merchants employees, agents or subcontractors may avail themselves of all of the defences and exemptions from liability available to the Merchant and which the Merchant is entitled to rely on hereunder.
10. CUSTOMER’S RISK
10.1. Any equipment, which the Merchant is to perform the contract works remains at all, times at the Customer’s risk.
10.2. The Merchant is not liable:-
10.2.1. to any person in respect of the loss or destruction of, or any damage to, any such equipment while it is in the custody or control of the Merchant;
10.2.2. for any loss of profits, loss of use, demurrage or any other consequential loss or damage, which may be, sustained by the customer or, if the Customer is not the owner of the goods, the owner of the goods.
10.3. Risk in contract works passes to the Customer on delivery.
11. APPLICABLE LAW
11.1. These conditions are governed by and construed under Queensland law and all parties submit to the jurisdiction of its Courts at the closest court to the Merchant. Any dispute of difference of any amount above $7500.00 which cannot be settled by direct negotiation between the Customer and the Merchant must be referred to an arbitrator mutually agreed and failing agreement, to the Australian Commercial Disputes Centre whose decision in all respects shall be final and binding. Any dispute or difference of an amount of $7500.00 or less which cannot be settled by direct negotiation between the Customer and the Merchant, must be referred to the small debts court whose decision in all respects shall be final and binding. Any dispute regarding goods, services or accounts is to be made in writing to the Merchant within seven (7) days of receipt of the said goods, services or accounts.
12. MERCHANT’S COPYRIGHT
12.1. The Merchant reserves copyright on all documents, drawings and specifications produced by the Merchant or on the Merchant’s behalf.
13. FORCE MAJEURE
13.1. The Merchant is not liable for failure to ship, deliver or tender documents, or delay in shipment, delivery or tender of documents due to unavailability of freight or shipping space, prohibitions or restrictions under any law or government or by any official or statutory authority, any failure or delay in delivery or shipment on the part of the manufactures, producers or agents delay in shipment, or force majeure or due to any cause whatsoever beyond the Merchant’s control.
13.2. The Merchant’s obligations hereunder are suspended while the Merchant is hindered or prevented from complying in whole or in part, by any manner, act or thing beyond the control of the Merchant including (but not limited to) strikes, floods, acts of God, acts of war (declared or undeclared), labour disturbances and detention of vessel.
14. DELIVERY
14.1. Delivery dates and other dates given by the Merchant are approximate. Failure to deliver the goods by the Delivery Date shall not give the Customer any rights against the Merchant.
14.2. Delivery of the goods is ex works (Incoterms). The Customer must take delivery within 7 days of notification or the Merchant may:
14.2.1. Store the goods until actual delivery and charge the Customer storage costs and insurance; or
14.2.2. Sell the goods by private treaty or public auction at the best price readily obtainable and (after deducting storage, insurance and selling expenses) account to the Customer for any excess over the contract price, or charge the Customer for any shortfall below it.
14.3. If the Merchant fails to deliver the goods on the delivery date, the Merchant may at its absolute discretion refund all monies paid by the Customer in full and final termination of the Agreement and the Customer shall not be entitled to any further compensation of any nature whatsoever nor to lodge a claim of any nature whatsoever against the Merchant.
14.4. Acceptance of delivery by the Customer is conclusive evidence that the goods are fit for the Customer’s purpose.
14.5. The Merchant may, at its discretion and at the Customer’s cost and risk in all things, arrange on the Customer’s behalf for the goods to be shipped elsewhere.
14.6. No dispute hereunder entitles the Customer to refuse to take delivery.
14.7. Documentation and/or plans will not be passed to the Customer until full payment is made
15. SEVERABILITY
15.1. Each provision set out in these conditions is to be construed as a separate limitation applying and surviving even if for any reason one or other of those provisions is held to be unenforceable, inapplicable, unfair, harsh or unconscionable in any circumstances.
16. DIRECTOR’S GUARANTEE
16.1. The Guarantors jointly and severally hereby guarantee to the Merchant the due and punctual performance by the Customer of all of the Customer’s duties, obligations and conditions hereunder including the payment by the Customer of all monies due hereunder to the Merchant.
16.2. The Guarantors jointly and severally (where more than one) indemnify the Merchant against any loss and damage suffered or incurred by the Merchant as a result of or arising directly or indirectly out of any breach of this Agreement by the Customer