The supply of goods or services by ITW Australia Pty Ltd (ABN 63 004 235 063) (Hobart) to a customer (buyer) is made on the following terms and conditions (Contract Terms):
1.1 These Contract Terms include all those statutory rights conferred on the buyer that Hobart is not capable of excluding restricting or modifying the buyer’s statutory rights.
1.2 Unless otherwise agreed in writing by Hobart, these Contract Terms apply to the exclusion of all prior discussions, representations, understandings and arrangements and any terms or conditions set out in the buyer’s order which are inconsistent with these Contract Terms (despite any statement by the buyer that its terms and conditions will apply or prevail over these Contract Terms).
1.3 Hobart may alter these Contract Terms on not less than thirty (30) days notice.
1.4 Unless otherwise agreed in writing by Hobart, the provision of engineers’ services to install, start up and/or commission any goods shall be the subject of a separate contract
- QUOTATIONS AND ORDERS
2.1 Unless previously withdrawn or varied by Hobart at any time or otherwise agreed in writing by Hobart, a quotation is open for acceptance for a period of thirty (30) days from the date of the quotation after which time it will lapse.
2.2 All orders are subject to written acceptance by Hobart.
- PRICE AND PRICE VARIATION
3.1 Unless otherwise stated, all prices charged are ex works.
3.2 Hobart is entitled to adjust any price to take into account a variation in cost arising from:
- delays in manufacture or installation as a result of any act or omission by the buyer, or other circumstances beyond Hobart’s control;
- variations in Hobart’s costs of manufacture including, without limitation, variations in the cost of labour or raw materials;
- variations in the cost of the goods to Hobart due to variations in the cost of freight and transport, insurance premiums, customs duties or currency exchange rates; and
- Any error or omission by Hobart.
3.3 All spare parts will incur a freight and packing charge.
- TERMS OF PAYMENT
4.1 Payment is to be made on goods sold by Hobart within Australia within thirty (30) days from the date of Hobart’s statement to the address specified on the invoice. If payment is required upon completion of installation, such payment shall be due on completion of Hobart’s obligations as provided in clause 6.
4.2 Unless otherwise agreed by Hobart in writing,
- payment is to be made for goods sold by Hobart outside Australia on a thirty (30) day irrevocable letter of credit; and
- payment is to be made for goods sold by Hobart in Asia by a confirmed irrevocable letter of credit.
4.3 Hobart reserves the right to require the buyer to pay to Hobart a minimum deposit equal to 25% of the purchase price for goods that are not spare parts.
4.4 In the event of default by the buyer under clause 4.1, 4.2 or 4.3, all debt recovery costs, including legal costs on a solicitor/own client basis and disbursements, and any mercantile agent costs charged to Hobart will be part of the indebtedness of the buyer to Hobart.
4.5 Without prejudice to any other remedy, Hobart may charge the buyer interest on any overdue amounts at a rate of 2% per annum above the overdraft rate for the time being charged by Hobart’s banker calculated and compounded on a daily basis from the due date until the payment is made in full.
- VARIATION OF TERMS OF PAYMENT
5.1 If Hobart decides that the creditworthiness of the buyer has become unsatisfactory, Hobart may on written notice to the buyer:
- vary the terms of payment and may require payment in full and in cash, and/or the provision of security for any amount unpaid; and
- stop any goods in transit until any requirements under this clause have been complied with.
- COMPLETION AND DELIVERY
6.1 Hobart will endeavour to deliver or supply the goods or services to complete the contract within the time agreed or within a reasonable time (in the absence of agreement).
6.2 Hobart’s obligations to supply goods shall be deemed to be completed and the goods deemed to be delivered when:
- in the case of goods sold for delivery and installation — when the goods are assembled in position and connected to the power and other services specified.
- in the case of goods sold for delivery — when the goods reach the specified destination. Unloading of goods shall be the buyer’s responsibility unless otherwise expressly agreed in writing.
- in the case of goods sold for delivery ex works – when the goods are delivered to the carrier.
6.3 Unless otherwise agreed, spare parts will be delivered by air freight at the buyer’s expense.
6.4 Hobart shall not be liable for any loss or damage (whether direct or indirect) caused by any failure to deliver, supply or complete either in whole or in part.
6.5 Hobart may suspend delivery, supply or completion and/or terminate the contract where the failure to deliver, supply or complete is caused by force majeure, including any act or omission on the part of the buyer, or by any act of God, war, lightning, fire, earthquake, storm , flood, explosion, any embargoes, acts of terrorism, restraint orders or restrictions imposed directly or indirectly by any government or governmental authority, agency or department, unavailability or delay in availability of equipment, materials, or transport, labour dispute and any other case whether of the kind enumerated or otherwise which is not within the control of Hobart.
- WITHOLDING SUPPLY AND DELIVERY BY INSTALMENTS
7.1 Hobart reserves the right to withhold supply to the buyer if the buyer is in breach of any contract with Hobart.
7.2 Hobart reserves the right to deliver the goods by installments and each installment shall be deemed to be sold under a separate contract incorporating these Contract Terms. Failure of Hobart to deliver any installment shall not entitle the buyer to cancel the balance of the contract or any other contract with Hobart or to claim any loss or damage.
- INSTALLATION AND COMMISSIONING
8.1 Where Hobart is to install, start up or commission the goods, the buyer will provide suitable access to and possession of the premises where the goods are to be installed, started up and commissioned, and shall provide suitable facilities at the premises in order to receive the goods.
8.2 The buyer will bear the cost of:
- any work to be carried out by third parties including, without limitation, builders, masons, joiners, pipefitters and electricians;
- any alterations to existing equipment or premises for use with the goods; and
- all fuels, services and other facilities required for the installation starting up and commissioning of the goods.
- TITLE AND RISK
9.1 Risk in the goods shall pass to the buyer on delivery in accordance with clause 6.2, but title to the goods sold shall not pass to the buyer until the purchase price and all other sums due by the buyer to Hobart have been paid in full.
9.2 Until payment for the goods and all other amounts owing by the buyer to Hobart is received by Hobart in full:
- the buyer shall hold the goods sold as bailee for Hobart. The buyer indemnifies Hobart against any loss, cost and expense associated with any damage (howsoever arising) to those goods, and against any tax, fine or impost assessed upon or in respect of the goods or any part thereof or the use thereof;
- if Hobart seeks to recover any goods for non-payment, the buyer hereby grants Hobart a license to enter the buyer’s premises or any other premises where goods are kept to recover possession of the goods; and
- the buyer shall insure in Hobart’s name the goods in the buyer’s possession against all usual risks including fire, breakage and theft, and shall produce to Hobart on demand the policies and receipts for the payment of the applicable premiums.
- PERSONAL PROPERTY SECURITIES LAW
- 1 The buyer agrees to promptly take such action as Hobart may reasonably require (including providing information or signing documents) to enable Hobart to perfect any security interest or exercise any rights that it may have under the PPS Law in relation to any goods sold to the buyer which have not been paid for in full (Unpaid Goods).
- 2 The buyer must not cause or knowingly permit any other person to take a security interest over, or to register a financing statement in relation to, any Unpaid Goods without the prior written consent of Hobart. The buyer will immediately notify Hobart if it becomes aware of any other person taking steps to register a financing statement in relation to the Unpaid Goods.
- 3 The buyer waives any requirement for Hobart to provide it with copies of notices in relation to any verification statement confirming registration of a financing statement or a financing change statement relating to any security interest under, or provided for by, these Contract Terms.
- 4 If Hobart takes enforcement action under these Contract Terms in respect of the Unpaid Goods, the buyer agrees that:
- it waives any rights it may otherwise have under sections 142 or 143 of the Personal Property Securities Act 2009 (PPSA) to redeem those goods or reinstate the previous security arrangement;
- if Hobart intends to remove any accessions from Unpaid Goods, if does not have to give the buyer notice of this under section 95 of the PPSA;
- if Hobart disposes of Unpaid Goods, the buyer will not require Hobart to give it any notice of that disposal under section 130 of the PPSA and will not require Hobart to provide it with a statement of account of that disposal under section 132 of the PPSA; and
- if Hobart intends to retain any Unpaid Goods it does not have to give the buyer notice of that intention under section 135 of the PPSA.
- 5 The buyer agrees to reimburse on demand Hobart’s costs in registering a security interest or taking any action under or in connection with this clause.
- 6 Terms in this clause that are defined in the PPSA have the same meaning as in the PPSA.
- 7 In this clause, PPS Law means:
- the PPSA,
- any regulation made under the PPSA; and
- any amendment from time to time made to any other legislation or regulation as a consequence of a PPS Law referred to in paragraphs (a) or (b) above.
- CANCELLATION AND RETURN
11.1 A fee of 15% will be charged for the cancellation of any order or the return of any machines to which Hobart agrees. The fee will be based on the value of the order or the sale price of the goods as the case may be. Except as required by law, or as required under clause 18, Hobart will not accept returns of parts and/or accessories.
11.2 Where the buyer delivers goods for return to Hobart the buyer will be given a credit to the value of those goods as determined by Hobart less any applicable fees and charges.
11.3 The credit given for the return of any goods will be reduced by the amount of Hobart’s expenses in manufacturing or otherwise procuring those goods.
- TRADE IN EQUIPMENT
12.1 Where the buyer delivers goods to Hobart as a trade-in, the risk of any loss or damage to those goods remains with the buyer until those goods are accepted by Hobart in writing.
12.2 The credit given by Hobart for any traded-in goods will be based on the condition of those goods when delivered to Hobart. Title to traded-in goods shall pass to Hobart upon its acceptance of those goods.
- CHANGEOVER GOODS
13.1 Hobart will invoice the buyer for any goods supplied on a changeover basis at sale prices at the time of dispatch.
13.2 Upon delivery of the reconditioned or repaired goods to the buyer, the buyer must promptly return any goods supplied on a changeover basis by Hobart. Hobart may accept the return of those goods having regard to their condition. If Hobart accepts the return of those goods, Hobart shall give credit to the buyer for the sale price of those goods.
- BUYER’S REQUIREMENTS
14.1 Prior to Hobart’s acceptance of any order, the buyer must inform Hobart of all its requirements including any statutory or regulatory requirements relating to the installation and end use of goods in the place of intended use. If the buyer fails to inform Hobart of such requirements, the buyer shall be responsible for, and shall indemnify Hobart against, any action, claim, demand, loss, damage, cost or expense associated with any failure to meet those requirements.
15.1 Hobart may conduct tests on any installed or commissioned goods. The buyer shall supply any materials required for those tests or the commissioning of those goods. The buyer shall bear the costs of any additional tests required by it.
15.2 Hobart may charge the buyer an engineering test fee where any goods returned for testing, subsequently pass all applicable tests.
- BUYERS DEFAULT INDEMNITY
16.1 Without prejudice to any other remedy, if the buyer breaches any of its obligations under these Contract Terms or commits an act of bankruptcy, makes any composition or arrangement with its creditors, or steps are taken for the winding up of the buyer, or the buyer has a receiver appointed over any of its property, Hobart may treat any contract with the buyer as terminated and the price then unpaid whether or not due in whole or part, shall become immediately due and payable.
16.2 If the manufacture, dispatch or transport of goods is delayed due to any act or omission of the buyer, and that delay continues beyond a reasonable time, Hobart may treat the contract as terminated and a proportion of the price that reflects the work already done by Hobart together with any expenses and any additional costs attributable to such delay, shall become due and payable by the buyer.
16.3 To the maximum extent permitted by law, the buyer shall indemnify and keep Hobart indemnified against any action, claim, demand, loss, damage, cost or expense which:
- Hobart may suffer or incur, or is liable for arising out of, or in connection with any breach of these Contract Terms by the buyer or the storage, use, possession, or other act or omission of the buyer in respect of any goods supplied; or
- may be brought by a third party arising out of or in connection with any goods supplied by Hobart to the buyer.
17.1 The buyer shall advise Hobart in writing of any claims:
- for loss or damage after delivery – within fourteen (14) days of receipt in the case of Australian orders and twenty-one (21) days of receipt in the case of export orders; and
- for non-delivery or a shortfall in delivery — within seven (7) days of agreed or reasonable delivery time in the case of Australian orders and fourteen (14) days of agreed or reasonable delivery time in the case of export orders.
- WARRANTY AND LIABILITY
18.1 Subject to this clause, Hobart warrants new HOBART products solely to the original end user (Owner) when installed within Australia, against defective material and workmanship for one (1) year from the date of original invoice, including service and labour, and all parts found to be defective.
18.2 Except for the buyer’s statutory rights, no guarantee, condition or warranty as to materials, workmanship or performance attaches to second hand, repaired or reconditioned goods sold by Hobart.
18.3 Certain laws may imply conditions, warranties or guarantees into contracts for the supply of goods and services that cannot lawfully be excluded by Hobart (Non-excludable Conditions). If a condition or warranty is implied into these Contract Terms and Hobart breaches that condition or warranty then, subject to clause 18.4, Hobart accepts liability for that breach. Hobart excludes all other conditions, warranties, guarantees and terms that, in the absence of this clause, would otherwise be implied into these Contract Terms.
18.4 To the extent permitted by law, Hobart’s liability, including, without limitation, liability based on negligence or breach of any Non-excludable Condition is limited (at Hobart’s option) to:
- in the case of goods, the replacement of the relevant goods or payment of the cost of replacing the relevant goods; and
- in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
18.5 Hobart may choose to give to the Owner a specific written warranty in relation to particular goods manufactured and sold by it when installed in Australia in addition to or substitution for the express warranty in clause 18.1. In the case of any such warranty against defective material and workmanship for a period of more than one (1) year from the date of original invoice, no claim may be made by the Owner unless all preventative and other maintenance of the relevant goods has been carried out by Hobart or an authorized agent of Hobart.
18.6 The buyer must prove, to Hobart’s reasonable satisfaction, that the defect developed under proper and normal conditions of use and maintenance and must deliver the defective part to Hobart.
18.7 In the case of defective goods not of Hobart’s manufacture, Hobart shall pass on to the buyer the benefits obtained under any guarantee given to Hobart by the manufacturer of those goods.
18.8 All express warranties given by Hobart do not cover any defective products, or parts thereof, where the defect is caused by accident, alteration, misuse, abuse, ordinary wear and tear or neglect or by the installation or operation of the products other than in accordance with Hobart’s recommended procedures.
18.9 All warranty work will be undertaken by Hobart from Monday to Friday 8.00am-4.00pm. Hobart may charge the buyer penalty rates for any work done outside those hours.
18.10 All express warranties given by Hobart are conditional upon Hobart receiving notice of any defect subject to the warranty within fourteen (14) days of its discovery by the Owner.
18.11 Damage to equipment due to poor water quality is not covered under any express warranty given by Hobart.
- RETURN OF DRAWINGS
19.1 All drawings and specifications obtained by the buyer from Hobart or its employees or agents remain Hobart’s property.
19.2 The buyer shall not, without the prior written consent of Hobart, utilise or reproduce such drawings or specifications or communicate them to a third party, except for the purpose for which they are supplied.
19.3 Except for Hobart’s standard descriptive specifications, operating instructions, layout and foundation drawings, all drawings and specifications are to be promptly returned to Hobart on completion of the contract or on request.
- GOODS AND SERVICES TAX
20.1 If GST is imposed on any taxable supply under these Contract Terms, then Hobart has the right to increase the purchase price payable on that taxable supply by an amount equal to the GST imposed.
20.2 To obtain a valid tax invoice, the buyer must supply Hobart with its ABN.
20.3 Any reference in this clause to “GST”,” taxable supply” and “tax invoice” has the meaning given to those expressions in A New Tax System (Goods and Services Tax) Act 1999.
- NO WAIVER
21.1 Failure by Hobart to enforce any of these Contract Terms shall not be construed as a waiver of any of Hobart’s rights under them or a waiver of a continuing breach.
- GOVERNING LAW
22.1 This contract shall be governed by the laws of the State of NSW and the buyer submits to the non-exclusive jurisdiction of the courts of that state.