Acceptance of this order is on the following terms and conditions. If there is to be any change to those terms and conditions, that change must be in writing signed by both the Seller and the Customer. Before fulfilling the order, the Seller may require the Customer to provide security acceptable to the Seller in its discretion for performance by the Customer of its obligations under these terms and conditions. In the event of any conflict between these terms and conditions and any of the terms and conditions that may appear on the Customer’s purchase order, these terms and conditions are paramount
2. ENTIRE AGREEMENT
These terms and conditions, together with any purchase orders in the Seller’s usual form, constitute the entire agreement between the Seller and the Customer about its subject matter and any previous dealings, course of usage of trade, previous agreements, undertakings, negotiations, representations and warranties cease to have any effect from the acceptance of this order.
3. TIMING OF ACCEPTANCE
Quotations are open for acceptance within 30 days of the date of quotation, after which time they may be subject to review. If a quotation is accepted after the expiration of the 30 day period, the price actually payable for the goods shall be the Seller’s current price as at the date of the Customer’s acceptance of the quotation at the option of the Seller. However, where the period between acceptance of the quotation and delivery of the Goods exceeds three (3) months for any reason, the Seller reserves the right to alter the price by written notice to the Customer prior to or at the time of delivery.
4. MATERIALS AND SHIPPING SPECIFICATIONS
The Seller reserves the right to make changes in specifications or design, which, in Seller’s opinion, are an improvement or are necessary due to the unavailability of materials. Shipping specifications and weights are approximate. Extra charges resulting from such variations shall be paid by the Customer.
5. PRICE AND PAYMENT
Except as otherwise provided herein, prices will be firm as of the date of order acceptance. Payment from the Customer shall be due upon receipt of Seller’s invoice(s) without set off, deduction or withholding and the Customer shall pay the price for the Goods within thirty (30) days after the date of the invoice issued by the Seller for the Goods, or within such other period as agreed between the parties in writing.
6. CREDIT ARRANGEMENTS
In the event of the Seller granting credit facilities to the Customer then the following terms apply:
- All accounts are to be settled in full within thirty (30) days after the date of the invoice /Statement issued by the Seller for the Goods or within such other period as may be agreed between the parties in writing.
- Should the Customer default in the payment of any monies due then:
- all monies owing to CQMS Razer Pty Ltd shall immediately become due and payable.
- the Seller shall be entitled to charge and be paid interest on all monies not paid within that period.
- Should the seller delay in collection action this does not mean the seller has waivered there right to collection action.
- CQMS Razer Pty Ltd shall be entitled to and may charge interest at the rate of 1.5%per calendar month on all overdue amounts from the due date for payment until the date of actual payment without prejudice of the other rights of the Seller.
- Any expenses, costs or disbursements incurred by the Seller in recovering any outstanding monies including debt collection agency fees and solicitor costs (on a solicitor and own client basis) shall be borne by the Customer.
- The Seller shall be entitled at any stage to request security or additional security as the Seller shall in its discretion think fit and shall be entitled to withhold supply of any goods or credit arrangements until such security or additional security shall be obtained or for any other reason at the Seller’s discretion.
- The Customer authorises in terms of the Privacy Act the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer to enable the Seller to asses the Customer’s application for commercial or personal credit.
- The Customer further authorises the Seller in terms of the Privacy Act:
- to give to and receive from the credit providers named by the Customer as credit referees or those named in a credit report from a credit reporting agency, information in the Seller’s possession or the other credit provider’s possession about the Customer’s creditworthiness, credit standing, credit history and credit capacity;
- to use this information to assess an application for credit by the Customer and assist the Seller in avoiding default by the Customer of its obligations;
- to notify other credit providers of a default by the Customer.
- Subject to any applicable legislation, the Customer authorises the Seller to disclose any confidential information which the Customer gives to the Seller to:
- any related bodies corporate of the Seller;
- the Seller’s auditors and professional advisors;
- any assignee or potential assignee of the Seller;
- any person to whom the Seller is required or not prohibited by law to do so;
- any official or authority that gives the Seller an order or request for the information.
6. CHARGES AND TAXES
Unless otherwise stated, the price of the Goods excludes all freight, transportation, shipping, insurances, packing, crating, storage, handling, demurrage, delivery, export and similar charges and the Customer shall pay and indemnify the Seller for such charges. In addition Goods and Services Tax will not be included in any quotation, unless specified to the contrary and, if applicable, will be an extra charge and will be payable contemporaneously with the price.
The delivery time if expressly stated in any quotation, is a fair approximation taken at the time of quotation and is subject to confirmation at time of ordering. The Seller shall not be held responsible for damage, loss or penalties suffered by the Customer as a result of late deliveries of the Goods whether the delay occurred during manufacture, delivery or otherwise and notwithstanding the cause of the delay and whether that cause was within the control of the Seller or not. In the event of such delay, the Seller shall be entitled to an equitable price adjustment (as determined by it) in addition to an extension of time for performance. Storage of the goods by the Seller shall be at the risk and expense of the Customer. If delay addressed by this paragraph continues for more than 120 days, the Seller may, in its sole discretion, elect to cancel the order and invoice the Customer for its costs and expenses in relation to the order up to the date of cancellation.
8. RECEIPT OF DELIVERY
The Customer shall be responsible for the immediate examination of Goods after arrival at the place of delivery and the Seller will not consider any claim in respect of damaged Goods or short deliveries unless particulars of such a claim are notified to the Seller within seven (7) days after the arrival of the Goods. The Customer waives any claims not so made.
9. RISK AND PROPERTY IN GOODS
Delivery shall be effected at the Seller’s premises. The Goods shall be at the risk of the Purchaser as from the date of delivery. The carrier of the Goods shall be taken to be the agent of the Customer even if engaged or paid by the Seller. Notwithstanding the timing of the passing of risk, the Seller retains title to the Goods until it has received full payment of all monies owing by the Customer to the Seller and pending that time the Customer must as bailee:
- keep the Goods separately stored;
- mark the Goods to indicate that the Goods belong to the Seller;
- keep the Goods in their original state and not resell, encumber, allow any security interest to attach or dispose of the Goods until after the Seller has received full payment;
- insure the Goods against all usual risks to full replacement value and hold any insurance monies received by the Customer on trust for the Seller.
The Customer further agrees that the Seller may terminate this bailment without notice to the Customer and without incurring any liability to the Customer, enter the Customer’s premises for the purpose of repossessing the Goods if the Customer (i) fails to make full payment for the Goods or of any other monies owing by the Customer to the Seller; (ii) otherwise defaults under this agreement in any material respect; (iii) is subject to an insolvency event, or the sale is otherwise terminated and the Goods remain unpaid for.
10. RETURN OF GOODS
No Goods may be returned to the Seller without the Seller’s prior written approval. Credit for Goods returned will be issued only after Seller’s inspection and acceptance of the Goods. In the case of parts ordered for machines that are no longer in production, orders may not be cancelled or Goods returned unless the Seller has a current need for the parts or Goods (as determined by the Seller in its discretion) or elects in writing to accept same in any event. Cancellation of orders shall be subject to a cancellation fee equal to the purchase price of the item(s) cancelled.
The Seller warrants the goods provided pursuant to this order will conform to the Seller’s written specifications in all material respects and warrants parts against failure due to defects in material or workmanship as follows:
Machine parts (dragline buckets and mobile bucket lips): a period of twelve (12) months after the date of commissioning of each product but no longer than 24 months after date of purchase. Pursuant to Warranty Certificate.
Wear parts, consumables, GET and rebuilt products: limited to defects in material and workmanship at time of installation, but not to exceed twelve (12) months from shipment ex-works. Notwithstanding the above, parts not manufactured by the Seller which are separately warranted by their respective manufacturers are not warranted by the Seller and the Seller shall assign to the Customer whatever rights the Seller obtains under any such warranties. Seller warrants that services provided hereunder shall conform in all material respects to the description of the services set forth in the order and will be performed in a workmanlike manner.
In the case of repairs, rebuilds or alterations to goods undertaken by the Seller under warranty or not, the abovementioned warranty periods will only apply from the date of such repair, rebuild or alteration to the parts replaced and not to the goods as a whole nor to any of the existing parts.”
Warranty claims must be sent to the Seller, Attention. Product Manager, within thirty (30) days of the failure due to defect. The Seller’s obligation on warranty claims and the Customer’s remedy thereof shall be exclusively limited, at the Seller’s option, to one of the following: (i) replacing ex-works any part proved to be defective, or (ii) remedying or repairing such defect. The Seller’s liability in respect of any replacement part supplied in terms of a warranty claim shall terminate on the expiry of the initial contractual warranty period as set out in clause 12. The Seller has the option of requiring the return of the alleged defective part, transportation charges prepaid by the Customer, before recognising any claim. In the event such claim is recognized, the Seller shall reimburse the Customer for such charges and the Seller shall bear the expenses it incurred in investigating the claim. If the claim is not recognised, the Customer shall reimburse the Seller for the Seller’s expenses in investigating the claim and where the Seller has already supplied a replacement part or undertaken a repair, the Seller shall be entitled to invoice the Customer for the costs thereof. The Customer’s remedy for warranty clauses shall be exclusively limited to remedying or repairing such defect, provided that the Seller is given written notice of such claimed defect within 7 days of the performance of the service.
Other than set forth above and subject to any legislation which cannot be disavowed by agreement between the Seller and the Customer, the Seller specifically disclaims any express or implied warranties including, but not limited to, any warranties of merchantability and/or fitness for a particular purpose of the Goods provided pursuant to this order. No allowances will be made for repairs or alterations undertaken without the Seller’s prior written consent. If parts which are not manufactured or recommended by the Seller are used in replacement without the Seller’s written consent or if the part or machine in which it is installed is subjected to misuse, abuse, negligence or accident or if the parts are not properly stored, maintained or installed and if the Seller determines that any of the foregoing adversely affects the parts, then all warranties on parts or components so affected are void. The Seller shall in no event be liable for incidental, special or consequential damages (including loss of production and profits), nor shall any recovery of any kind against the Seller be greater in amount than the purchase price of the specific part(s) of the machine which caused the alleged loss, damage or injury. The Seller shall not be liable for the cost of dismantling or installing replacement parts.
The Seller shall not be liable for any indirect, special, incidental, punitive, exemplary or consequential damages whatsoever, howsoever arising including, but not limited to, damage to associated equipment, loss of profits or revenue, loss of use of the Customer’s property, plant, equipment or system downtime costs or claims of Customer’s customers. The Seller’s total aggregate liability to the Customer shall not exceed the purchase price paid by the Customer for the specific product(s) or services from which any claim may arise.
The Customer shall defend, indemnify, and hold harmless the Seller and the Seller’s officers, employees and agents from and against any and all liability, loss, damage, cost or expense (including legal professional costs on a solicitor and own client basis) arising out of or as a result of
- the use of the Goods by the Customer or the Customer’s agents or representatives;
- the death of or injury to any person(s) or damage to or destruction of property arising out of (i) directly or indirectly;
- the Customer’s failure to observe these terms and conditions in all material respects.
14. INTELLECTUAL PROPERTY
All patents, design rights, trademarks, trade names, symbols, copyright, original works, design, specification, process, method of working or other information relating to the Goods (other than that provided by the Customer to the Seller) is the exclusive property of the Seller at all times. Subject to this, the Seller grants to the Customer an irrevocable licence to use the Goods.
15. PATENT AND COPYRIGHT INFRINGEMENT
Subject to the limitations of paragraph 15, the Seller agrees to indemnify the Customer against any claim, suit, or proceeding based upon infringement of any patent or copyright by any Goods supplied under this order, provided that the Customer (i) gives the Seller prompt and timely notice in writing of the institution or threat of such claim, suit or proceeding and (ii) permits the Seller to control and fully cooperates with the Seller in the defence and all related settlement negotiations. If the Seller determines that the use of the property is infringing, or is likely to infringe the intellectual property rights of another, the Seller may at its option ( i) procure for the Customer the right to continue using the infringing property, (ii) replace the infringing property with non-infringing property, (iii) modify the infringing property or (iv) remove the infringing property and refund the applicable portion of the purchase price paid by the Customer as determined by the Seller in its discretion. If any infringement as set out in this clause arises as a result of a request made by the Customer or the use by the Seller of goods, patents or specifications supplied by the Customer, the Customer hereby indemnifies the Seller and will continue to keep the Seller indemnified against all resulting loss or damage suffered b y the Seller whether directly or indirectly.
The Goods (including any software embedded in the Goods) incorporate technology, proprietary information and trade secrets of Seller. All specifications, illustrations, drawings, data, concepts, knowhow, computer programmes, technical information and other information (“Confidential Information”) transmitted by the Seller to the Customer in any form in connection with this order are the property of the Seller. The Customer must keep it secret and confidential and must ensure that it is not to be reproduced, copied or used for any other purpose than the purpose for which it is provided under this order. The Customer shall not disclose or permit disclosure of Confidential Information to third parties without the authorized prior written permission of the Seller specifically identifying the information that may be disclosed, the parties to whom it may be disclosed and the permitted purposes for which it may be disclosed. Without derogating from the obligations of the Customer under this clause, the Customer may disclose the Confidential Information to its employees on a need to know basis after first making those employees aware of the Customer’s obligations under this clause. The Customer is strictly liable for any non authorised disclosure of Confidential Information by its employees.
All taxes and charges of any type levied on or incidental to the sale of the Goods (other than income taxes payable by the Seller) will be borne and paid by the Customer. If any such taxes and charges or the payment of the same, oblige the Customer to withhold part of the price for the Goods, that price will be increased by the amount of the tax or charge payable.
18. ASSIGNMENT; VALIDITY
This agreement is not assignable without the prior written consent of the Seller, which consent may be withheld in the Seller’s sole discretion. Any attempt to assign any of the rights, duties or obligations of this agreement without such consent is void. If any provisions(s) of this agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
These terms and conditions will be governed and determined in accord with the law of the State or Territory of Australia in which the Seller or that division of the Seller (as set out on the Seller’s invoice) making this sale is located. The parties submit to the courts of that State or Territory.
COMPLIANCE WITH REGULATIONS
The Seller shall provide the Goods in accordance with the Seller’s good faith interpretation of applicable codes and regulations in effect at the time of manufacture. However, due to periodic changes in and varying interpretations of such codes and regulations, the Seller makes no representations that the Goods comply with all laws, codes, regulations and standards. The Seller shall, at the Customer’s request and expense, make any reasonable modifications to the Goods which are required in order for the Goods to comply with any codes and/or regulations.
20. CUSTOMER MODIFICATIONS
Any modifications by the Customer of the Goods may adversely affect their performance or safety and will result in the waiver of all warranties and guarantees. The Customer shall indemnify, defend and hold harmless the Seller from any and all loss or damage which the Seller may suffer or incur directly or indirectly from those modifications.
21. DEFAULT, INSOLVENCY AND TERMINATION
If the Customer:
- commits a substantial breach of the terms and conditions contained herein including failing to accept any of the Goods or failing to pay for any of the Goods, in accordance with the terms and conditions contained herein;
- informs any person it is insolvent, commits an act of bankruptcy, has a bankruptcy petition presented against it, becomes bankrupt, becomes subject to or bound by any arrangement, assignment, composition or moratorium of debts with its creditors, official management, receivership, liquidation, voluntary administration;
- the Seller may without affecting the Seller’s other rights:
- immediately terminate the sale of any of its Goods, by notice in writing to the Customer;
- refuse, suspend or withhold any further supply of the Goods;
- enter upon (personally or by its agent) any premises in the possession or control of the Customer and use reasonable force for the purpose of retaking possession of any Goods (title to which has not passed to the Customer), in which case the sale of those Goods shall be taken to be terminated and the Seller shall have no liability to the Customer whether for trespass, negligence, payment of damages or compensation or otherwise;
- terminate any credit arrangements with the Customer by notice in writing to the Customer at which time all outstanding amounts become immediately due and payable;
- offset any payments made in respect of any Goods for which the sale has been terminated against any amounts due in respect of any debts of the Customer including costs and damages incurred by the Seller.
The Seller will not be responsible for conformity of patterns to drawings unless the patterns are made by the Seller. All repairs due to fair wear and tear must be paid for by the Customer. No responsibility will be accepted by the Seller for storage of patterns which will be at the Customer’s risk. Should foam patterns be supplied or required by the Customer, the Seller will not be responsible for the surface finish of the castings. If a scrap casting results from use of the Customer’s pattern, a new pattern is to be supplied by the Customer.
Unless otherwise agreed in writing the Seller may, without the Customer’s consent, engage subcontractors to carry out the whole of or any part of supply or manufacture of the Goods.
23. DISPUTE RESOLUTION
In the event of any dispute arising out of or in connection with these terms and conditions, the parties agree to submit their complaints to the other and both parties agree to work in good faith to address the submitted complaints. If the dispute has not been settled within ten (10) days following the submission of the complaints to the other party or within such other period as the parties may agree in writing, the parties will have recourse to the means of resolution of disputes set out hereunder, namely:
- a formal written notice of dispute may be issued by one party to the other but that notice must –
- identify the subject matter of the dispute;
- set out in detail the facts upon which the dispute is based;
- identify those terms and conditions relevant to the dispute;
- have annexed to it copies of all correspondence and background information relevant to the dispute; and
- contain particulars of the quantification of any claim in relation to the dispute.
- Either party may then request one of the following persons to appoint an expert to determine the dispute as may be appropriate.
- if it relates to the interpretation of these terms and conditions, a solicitor of at least ten (10) years standing nominated by the President for the time being of the Queensland Law Society Inc;
- if it relates to the accuracy or contents of accounts, an independent chartered accountant practicing in Brisbane of not less then ten (10) years standing nominated by the President for the time being of the Institute of Chartered Accountants in Australia (Queensland Branch);
- if it relates to design, construction, building or other technical aspects of the Goods, by a qualified engineer of not less than ten (10) years standing nominated by the President for the time being of Engineers Australia Queensland Division;
- if it relates to any other matter or thing in relation to these terms and conditions or the Goods not being those referred to in these subclauses, then by a person appointed by the Administrator of the Queensland Chapter of the Institute of Arbitrators and Mediators; and in the case of any such dispute or difference –
- the nominee will determine the dispute or difference acting as an expert and not as an arbitrator;
- the decision of the nominee will be final and binding upon the parties;
- each party will bear its own costs of any such nomination and the resolution of any such dispute or difference.
24. PERSONAL PROPERTY SECURITIES ACT
The Customer acknowledges and agrees that:
- the retention of title in the “Risk and Property to Goods” clause creates a Security Interest in the Goods and their Proceeds in favour of the Seller and that Security Interest is a Purchase Money Security Interest;
- it will not allow anything to be done or act in a way that might adversely affect the Security Interest in the Products that is granted to the Seller;
- it will and hereby does indemnify the Seller for all of its direct costs associated with enforcing its Security Interest.