Terms & Conditions
PURPOSE & APPLICATION
1.1 All Goods and Services will be supplied to the Customer pursuant to these Terms and Conditions and, accordingly, these Terms and Conditions are incorporated into,and apply in relation to:
1.1.1 all Quotations and tenders submitted by the Company; and
1.1.2 all current and future orders accepted by the Company for the supply of Goods and/or Services to the Customer.
1.2 If more than one person is the Customer, those persons contract jointly and severally for themselves and each other.
1.3 Where the Customer, as trustee of a trust, incurs a liability under these Terms and Conditions to the Company, the Customer will incur that liability personally as well as in its capacity as trustee.
SUPPLY OF GOODS
The Company and Customer agree that the Company will supply Goods and Services to the Customer on an ongoing basis pursuant to these Terms and Conditions.
3. 1. A price quoted by the Company and accepted by the Customer is based upon the quantities of Goods and or Services referred to, or designated, by the Customer. Should there be any change in the total quantity or designation of Goods or Services ordered by the Customer, that change shall be a variation in accordance with clause 13 and the price quoted by the Company shall be adjusted accordingly
3. 2. The prices quoted for Goods which are not stock of the Company, but are imported for the Customer’s requirements, are based on the quoted rate of exchange and shall be subject to adjustment in respect of any exchange rate fluctuations.
3. 3.There is no right of set-off in respect of any claims against the Company.
4. 1. The time quoted for Delivery commences when the Company receives a completed written order and all information required from the Customer to allow the Company to complete the order.
4. 2. Quoted Delivery dates are estimates only and, while the Company will use reasonable endeavours to meet such dates:
4.2.1. a delay in Delivery, howsoever caused, shall not constitute a breach of these Terms and Conditions;
4.2.2. in no event shall the Company be liable to the Customer (whether in tort or in contract) for, or in respect of, any loss, damage or injury of any kind whatsoever to persons or property arising from or relating to:
188.8.131.52. the unavailability of the Goods;
184.108.40.206. the failure of the Company to deliver the Goods on a specific date, or within a specific time, or at all; or
220.127.116.11. the failure of the Company to install the Goods on a specific date, or within a specific time, or at all.
4.3. If the Company has reason to believe that it will be unable to supply the Goods to the Customer within a reasonable time, or at all, the Company may, without penalty, cancel the order for those Goods, in which case, the Company will refund the Customer any amount of the price already paid in respect of those Goods not delivered.
5.1. Except as provided in clause 5.2, payment in full is due and payable upon Delivery of the Goods or upon completion of the Services.
5.2. If the Customer has made a credit application to the Company which has been accepted, the Company may supply Goods and Services to the Customer on credit. Credit accounts must be paid by the end of the month immediately following provision of the Goods or Services.
5.3. If a Customer fails to make any payment to the Company when due and payable then:
5.3.1. interest shall be payable on the overdue amount at the rate of 12% per annum until payment has been made;
5.3.2. an account keeping fee of $5.00 per month shall be charged; and
5.3.3. the Customer shall pay all costs of the Company in seeking to recover the overdue amounts.
RISK & TITLE
6. 1. Risk in the Goods passes to the Customer upon Delivery, notwithstanding that title to the Goods may not have passed.
6. 2. Property in the Goods shall not pass to the Customer until the Company has been paid in full for all Goods which have been delivered to the Customer.
6. 3. Until the Goods are paid for in full, the Customer is in possession of the Goods solely as bailee for the Company and, if the Customer sells any of the Goods before property in those Goods has passed to the Customer, the Customer shall hold the proceeds of such sale on trust for the Company.
WARRANTY AND LIMITATION LIABILITY IN RELATION TO THE GOODS
7.1. During the period of six months from the date of Delivery of the Goods, the Company shall replace or repair any defective Goods without charge.
7.2. The warranty provided under clause 7.1 does not apply to normal wear and tear or to damage of the Goods resulting from:
7.2.1. improper adjustment, calibration or operation of the Goods by the Customer;
7.2.2. the use of accessories not supplied by the Company as manufactured for, or approved for, use with the Goods;
7.2.3.any contamination or leakage caused or induced by the Customer;
7.2.4. any modifications of the Goods not authorised in writing by the Company;
7.2.5.any misuse of the Goods;
7.2.6. any use or operation of the Goods outside of the physical, electrical or environmental specifications for the Goods, or
7.2.7.inadequate or improper maintenance of the Goods.
7.3. The warranty in clause 7.1 does not extend to cover:
7.3.1. any damage to Sensitive Parts in the Goods;
7.3.2.corrosion due to any cause; or
7.3.3. damage to painted or anodised surfaces.
7.4. All transportation costs incurred in returning defective Goods or parts for repair, together with the cost of returning them to the Customer following repair, shall be paid for by the Customer
7.5. If the Customer is a Consumer and any Goods supplied by the Company are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, the Customer agrees that the Company’s liability for a failure to comply with a consumer guarantee under the ACL in relation to those Goods (other than a guarantee under sections 51, 52 and 53 of the ACL) is limited, at the option of the Company, to one or more of the following:
7.5.1.the replacement of the Goods or the supply of equivalent goods;
7.5.2. the repair of the Goods;
7.5.3. the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
7.5.4. the payment of the cost of having the Goods repaired.
7.6. If the Customer is not a Consumer, to the extent permitted by Law, the Company will not be liable in any circumstances for any:
7.6.1. loss or damage to any property or person whatsoever resulting from the provision of the Goods; or
7.6.2. consequential loss.
WARRANTY AND LIMITATION OF LIABILITY IN RELATION TO SERVICES
8.1. The Company warrants that the Services comply with the guarantees that apply compulsorily under the ACL.
8.2. To the extent permitted by law, all other guarantees, warranties, undertakings and representations expressed or implied, whether arising by statute or otherwise, which are not given in these Terms and Conditions or any warranty document given at the time of supply are expressly excluded.
8.3. If the Customer is a Consumer and the Services supplied are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Customer agrees that the Company’s liability for a failure to comply with a consumer guarantee under the ACL in relation to that supply is limited, at the option of the Company, to one or more of the following:
8.3.1. supplying the Services again; or
8.3.2. the payment of the cost of having the Services supplied again.
8.4. If the Customer is not a Consumer, to the extent permitted by law, the Company will not be liable in any circumstances for any loss or damage (including indirect or consequential loss) to any property or person resulting from the provision or delay in the provision of the Services.
8.5. In the absence of detailed information being conveyed to the Company, in regards to the positioning of underground services, the Company will not be held responsible for any damage caused to any underground service whatsoever unless the damage is caused by wilful misconduct on the part of the Company or any of its employees or agents acting within the scope of their employment.
EXCLUSION OF REPRESENTATIONS AND ARRANGEMENTS
These Terms and Conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods or Services or any part thereof including, without limiting the generality of the foregoing, those relating to the performance of the Goods or Services.
INDEMNITY AND EXCLUSION OF NEGLIGENCE
To the extent permitted by Law, the Customer agrees, notwithstanding any negligence on the part of the Company in the design, manufacture or installation of the Goods or the performance of the Services, to release, hold harmless and indemnify the Company from and against all liabilities, claims, damages, losses, costs and expenses of whatever nature and howsoever occurring which may accrue against or be suffered by the Customer arising out of or in any way connected with the supply of the Goods or the performance of the Services by the Company, unless caused by wilful misconduct on the part of the Company or any of its employees or agents acting within the scope of their employment.
PRECEDENCE AND PARTIAL INVALIDITY
If there is any inconsistency, ambiguity or discrepancy between these Terms and Conditions and any other offer or document, whether originating from the Company or the Customer, these Terms and Conditions will prevail. In the event of one or more clauses of these Terms and Conditions being held by a court of law to be legally invalid or unenforceable, the remainder of these Terms and Conditions shall in no way be affected.
Unless previously revoked by written notification to the Customer, the Company’s Quotation shall remain valid for the period as stated in the Quotation, or where no such period is stated, for 30 days from the date of the Quotation.
Any cancellation or variation by the Customer shall be binding only if accepted in writing by the Company and any such variation or cancellation shall occur only on terms which will reimburse the Company for any costs or loss, including but not limited to loss of profit, incurred by the Company.
14.1. The Customer warrants that any design or instructions furnished or given by the Customer to the Company shall not be such as to cause the Company to infringe any Intellectual Property Rights.
14.2. All Intellectual Property Rights held by the Company and relating to the Goods shall remain the absolute property of the Company and any Intellectual Property of the Company shall not be reproduced or disclosed by the Customer without the Company’s written consent.
14.3. The Customer confirms that it will ensure that any material or information, no matter how constituted, supplied to the Company shall be year 2000 systems issues compliant in all respects.
APPLICABILITY OF THE GST ACT
15.1. If GST has application to any supply made under these Terms and Conditions, and the consideration payable or to be provided under these Terms and Conditions is not otherwise expressly stated to be inclusive of GST, the Company may, in addition to the consideration payable or to be provided elsewhere in these Terms and Conditions, subject to issuing a valid Tax Invoice, recover from the Customer an additional amount on account of GST.
15.2. If, it is determined on reasonable grounds that the amount of GST paid or payable on any supply made under these Terms and Conditions differs for any reason from the amount of GST recovered from the Customer then the amount of GST recovered or recoverable from the Customer shall be adjusted accordingly.
15.3. All amounts payable by the Customer to the Company by way of reimbursement of an amount paid or payable by the Company to any other person, or calculated on the basis of amounts incurred or to be incurred by the Company, shall be calculated on the basis of such amounts payable by the Company, or costs incurred by the Company, excluding any applicable amount in respect of GST incurred by the Company to the extent to which the Company is entitled to an input tax credit in respect of such GST or amount.
16.1. Any Quotation given by the Company for the Services does not cover:
16.1.1. the removal of Rock or Reef by mechanical means;
16.1.2. the cost of removal of surplus Rock or Reef;
16.1.3. the blasting of Rock or Reef,
which may be required in the course of providing the Services.
16.2. Should the additional work of the type listed in clause 16.1 be required, an additional cost will be incurred by the Customer. In calculating this additional cost, the Company will keep the Rock and Reef separate and distinguishable from all other materials, measure the Rock and Reef and stipulate the additional cost to the Customer prior to the backfilling of the excavations.
17.1. Any Quotation given by the Company for the Goods or Services which requires the provision of copper based products is subject to adjustment in accordance with any movement in the AEEMA copper index.
17.2. The Customer will be responsible for any increase in the price as a consequence of, the operation of clause 17.1.
Any Quotation given by the Company is based on the assumption that the Services will be executed in an asbestos and SMF free environment. The Customer shall accept full responsibility for the resolution of any problems and for delays and additional costs (if any) which may result from the presence of asbestos or asbestos contaminated materials in or about the site on which the Services, or any part thereof, are to be performed.
All drawings, specifications and other written information, samples and the like provided by the Company to the Customer shall be regarded as confidential and shall not be disclosed to a third party except with the prior written consent of the Company.
The Company shall not be responsible for the non-fulfilment of its obligations due to a Force Majeure Event.
21.1. These Terms and Conditions are governed by and construed in accordance with the laws of Victoria, Australia.
21.2. Nothing in these Terms and Conditions is intended to exclude, restrict or modify rights which the Customer may have under any Law and which cannot be excluded, restricted or modified.
PERSONAL PROPERTY SECURITIES ACT 2009 (CTH)
22.1. These Terms and Conditions constitute a Security Agreement for the purposes of the PPSA which creates a Security Interest in the Company’s favour in the Goods and their proceeds;
22.2. The Company may register the Security Interest in the Goods on the Register as a Purchase Money Security Interest.
22.3. To the extent the Law permits, for the purposes of sections 115(1) of the PPSA:
22.3.1. the Company need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4); and
22.3.2. sections 142 and 143 are excluded.
22.4. To the extent the Law permits, for the purposes of section 115(7) of the PPSA, the Company need not comply with sections 132 and 137(3).
22.5. To the extent the Law permits, the Customer waives its right to receive any notice that is required by any provision of the PPSA (including a notice of a verification statement) or any other law.
22.6. Nothing in clause 22.5 prohibits the Company from giving a notice under the PPSA or any other law.
22.7. The Customer agrees that sections 125, 142 and 143 of the PPSA will not apply.
PRIVACY ACT 1988 (CTH)
23.1. The Company is an organisation bound by the Australian Privacy Principles and the Credit Reporting Code under the Privacy Act. A copy of the Australian Privacy Principles and Credit Reporting Code are both available from the Office of the Australian Information Commissioner’s website at oaic.gov.au.
24.1. AEEMA means the Australian Electrical and Electronic Manufacturers Association;
24.2. ACL means the Australian Consumer Law as set out in Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth);
24.3. Company means Gordon McKay Pty Ltd (ABN 70 005 174 160);
24.4. Consumer has the meaning given to it in the ACL;
24.5. Credit Eligibility Information, Credit Reporting Information, Personal Information, Sensitive Information, Privacy Principles, Credit Reporting Code and Credit Reporting Information each have the meaning prescribed to them in the Privacy Act.
24.6. Customer means the party to whom Goods and Services are supplied to by the Company;
24.7. Delivery means the delivery of the Goods to the Customer or the Customer’s nominated agent;
24.8. Force Majeure Event means any act or circumstance which is beyond the reasonable control of the Company which results in or causes the failure of the Company to perform any of its obligations under these Terms and Conditions which includes, but is not limited to, an act of god, riots, fire, explosions, flood, natural disasters, industrial action or the declaration of a state of emergency;
24.9. Goods means goods, including items of equipment, supplied by the Company to the Customer;
24.10. GST has the same meaning as in the GST Act;
24.11. GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
24.12. Intellectual Property means all rights resulting from intellectual activity and includes copyright, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and all rights and interests of a like nature, including but not limited to methods and techniques, together with any documentation relating to such rights and interests;
24.13. Intellectual Property Rights means mean all rights relating to copyright, neighbouring rights, trade marks (registered and unregistered), designs, all rights in relation to inventions (including patent rights, semi conductor or circuit layout rights), confidential information (including trade secrets and know how) and any other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields but excluding moral rights which by law are non-assignable;
24.14. Law means any relevant federal, state or local statute, ordinance, rule, regulation or standard, as amended from time to time;
24.15. PPSA means the Personal Property Securities Act 2009 (Cth);
24.16. Privacy Act means the Privacy Act 1988 (Cth);
24.17. Purchase Money Security Interest, Security Agreement, Security Interest and Verification Register have the meaning prescribed to them in the PPSA;
24.18. Quotation means any written quotation given by the Company to the Customer for the provision of Goods and/or Services
24.19. Reef means a ridge of rock, sand, coral, etc, the top of which lies close to the surface
24.20. Rock means reef, shale, rock, concrete, masonry or any matter or material that would normally have to be loosened by blasting or by pneumatic tools, or if excavated by hand, wedges and sledgehammers; or that requiring to be removed by mechanical means;
24.21 .Services means any services provided to the Customer by the Company;.
24.22. Sensitive Parts means equipment or parts there of which is/are readily or excessively affected by external agencies or influences.
24.23. SMF means Synthetic Mineral Fibres;
24.24. Tax Invoice has the meaning set out in the GST Act;
24.25. Terms and Conditions means these general terms and conditions of trade.