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STANDARD TERMS AND CONDITIONS: SALE OF GOODS

Certain legislation in Australia may provide consumer guarantees or impose obligations on the Supplier which cannot be excluded, restricted or modified, or only to a limited extent. The terms and conditions contained in this document are subject to such legislation, including but not limited to Australian Consumer Law.

1.       INTERPRETATION

In this document and in any Contract to which these terms and conditions apply, unless inconsistent with the context:

(a)      the Act means the Competition and Consumer Act 2010;

(b)      Claim means any claim, demand, action or proceeding;

(c)      Collateral has the meaning given under the PPSA and in particular for the purposes of this Contract, the personal property that is not used predominately for personal, domestic or household purposes as identified in clause 14 hereof to which the Security Interest has attached;

(d)      Contract means the contract between the Supplier and the Purchaser for or in relation to the sale and purchase of Services and incorporates the Purchase Order and these Terms and Conditions;

(e)      Event of Force Majeure includes but is not limited to any acts of God, war, riots, strikes, lock outs, trade disputes, fires, breakdowns, mechanical failures, interruptions of transport, government action or any other action outside the reasonable control of the Supplier.

(f)      Goods means any item of whatsoever nature which is sold or to be sold by the Supplier to the Purchaser;

(g)      GST means the Goods and Services Tax imposed by the Australian Federal Government together with any related interest, penalties, fines or other charges as provided by the New Tax System (Goods and Services Tax) Act 1999 or any act imposing or relating to the imposition or administration of a Goods and services tax in Australia and any regulation made under such an Act.

(h)      PPSA  means the Personal Property Securities Act 2009 (Cth)as amended;

(i)       PPS Register means the personal property securities register established under section 149 of the PPSA;

(j)       Prescribed Terms means any terms, conditions, guarantees and warranties which the Act and any other law expressly provides may not in respect of the Contract be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent;

(k)      Purchase Order means the written or electronic order from the Purchaser to the Supplier for Goods to be purchased by the Purchaser from the Supplier under these terms and conditions containing amongst other things, a description of the Goods;

(l)       Purchaser means the person, corporation or statutory body who buys the Goods from the Supplier;

(m)     Quotation means the form of quotation submitted by the Supplier to the Purchaser in which these terms and conditions have deemed to be incorporated.

(n)      Sales Confirmation means the documents, letter or email issued by the Supplier that formally accepts the order for Goods from the Purchaser or the document issued by the Purchaser confirming written acceptance for the supply of Goods;

(o)      Security Interest has the meaning given under the PPSA;

(p)      Supplier means IMATECH BULK MATERIAL HANDLING PTY LTD.

(q)      Headings and underlining are for convenience only and do not affect the interpretation of this document;

(r)      A word or expression in the singular includes the plural, and the other way around;

(s)      Words importing a gender include any gender;

(t)      A reference to a person or words denoting a person includes any company, statutory corporation, partnership, joint venture, association, board, government or semi government agency or authority and that person’s successors and legal personal representative.

2.       GENERAL

(a)      Subject to any Prescribed Terms, these terms and conditions together with the relevant Purchase Order and/or Sales Confirmation embody the sole terms and conditions of the Contract between the Supplier and the Purchaser and supersedes all other conditions and agreements between the parties, unless expressly amended in writing by the Supplier.

(b)      These terms and conditions shall without further notice apply to all future transactions between the Supplier and the Purchaser in relation to the sale and purchase of Goods, whether or not this document is delivered or executed in the course of the transaction and the Purchaser acknowledges that they have read and understood these terms and conditions.

(c)      All Purchase Orders supplied by the Purchaser are subject to acceptance by the Supplier and no Contract between the Supplier and the Purchaser comes into existence until the Supplier issues a Sales Confirmation in relation to the order.

(d)      Subject to clause 11 hereof, no variation or cancellation of these terms and conditions shall be effective unless it is evidenced in writing and signed on behalf of the Supplier.

3.       QUOTATION

(a)      The price of the Goods will be in accordance with the Quotation provided by the Supplier.

(b)      A Quotation provided by the Supplier is fixed and remains valid for a period of thirty (30) days from the date of the final quotation unless:

(i)    otherwise set out in the Quotation; or

(ii)    agreed to in writing between the Purchaser and the Supplier.

(c)      The Purchaser acknowledges that the Quotation is not to be construed as an obligation to sell to the Purchaser and no contractual relationship shall arise from a Quotation until such time a Sales Confirmation in relation to the order has been issued by the Supplier.

4.       PURCHASER ORDERS

(a)      Every order by the Purchaser must be submitted in writing.

(b)      A Purchase Order will not be accepted by the Supplier unless the Purchase Order clearly identifies the Goods ordered and/or the Supplier’s Quotation. Any costs incurred by the Supplier in reliance on incorrect or inadequate information may result in additional charges being incurred by the Purchaser.

(c)      The Supplier may in its absolute discretion refuse to provide the Goods where:

(i)    Goods are unavailable for any reason whatsoever;

(ii)    credit limits cannot be agreed upon or have been exceeded; or

(iii)    payment for Goods previously provided to the Purchaser or any related corporation of the Purchaser or to any other party who is, in the reasonable opinion of the Supplier, associated with the Purchaser under the same or another supply contract, has not been received by the Supplier.

5.       PAYMENT

(a)      Unless otherwise agreed to by the parties in writing, payment by the Purchaser shall be made in full for the Goods before physical delivery of the Goods is made to the Purchaser; or

(b)      If credit terms have been expressly agreed to in writing by the Supplier, payment shall be made in accordance with the terms of credit agreed to between the Supplier and the Purchaser.

(c)      Time for payment of the price of the Goods shall be of the essence, and if the Purchaser fails to pay the price when due, the Supplier may treat the Contract as repudiated by the Purchaser and may suspend delivery of the Goods, the subject of the Contract, and any Goods the subject of any other Contract with the Purchaser without incurring any liability whatsoever to the Purchaser in respect thereof.

(d)      If the Purchaser fails to make payment in accordance with this clause, the Purchaser shall pay in addition to the purchase price and/or such other amounts that are due and payable to the Supplier, a sum equivalent to the business overdraft rate published from time to time by the National Australia Bank Limited of Australia until all amounts payable to the Supplier have been paid in full.

(e)      Notwithstanding any rights of lien to which the Supplier may otherwise be entitled, the Supplier shall have a specific lien (including a right of sale) over the Goods the subject of the Contract and any Goods the subject of any other contract with the Purchaser until the price of the Goods has been paid in full. The Purchaser shall not be entitled to make any deduction from the price in respect of any setoff or counter claims.

6.       DELIVERY

(a)      The Goods will be available at the Supplier’s premises or as otherwise agreed between the Supplier and Purchaser;

(b)      Any time or date named and accepted by the Supplier for completion, delivery, despatch, shipment or arrival of the Goods is an estimate only and does not constitute a condition of the Contract or part of the description of the Goods and is not of the essence of the Contract.

(c)      The Purchaser accepts the Goods when it and/or its employees, agents or sub-contractors sign for delivery of the Goods.

(d)      The Purchaser shall notify the Supplier in writing within two (2) business days of delivery of any shortfall in or loss or damage to the Goods delivered.

(e)      The Purchaser agrees that failure to notify in accordance with clause 6(d) above shall, subject to the requirements of any Prescribed Terms, disentitle the Purchaser to any remedy in respect to the shortage, loss or damage in respect of the Goods supplied.

7.       PURCHASER’S CANCELLATION

(a)      After a Sales Confirmation has issued, the Purchaser shall not be entitled to cancel an order unless the express written authority of the Supplier is obtained.

(b)      The Supplier, at its discretion, shall have the right to recover the whole of the invoice price and any associated costs from the Purchaser.

8.       RISK AND TITLE

(a)      Except as otherwise provided herein, the Goods supplied by the Supplier to the Purchaser shall be at the Purchaser’s sole risk immediately upon their delivery to the Purchaser.

(b)      Property and title in the Goods supplied by the Supplier to the Purchaser will not pass to the Purchaser until such a time as the Goods, the subject of the Contract and all other Goods supplied by the Supplier to the Purchaser, have been paid in full. Provided that the supplied Goods have not been mixed and/or stored by the Purchaser, the Purchaser shall upon the Supplier’s demand deliver up such Goods to the Supplier and in default of such delivery, the Supplier may by its servants and/or its agents enter the Purchaser’s premises at any time without notice to repossess the Goods.

(c)      Subject to the PPSA, until such time as the Goods have been paid in full, the Purchaser is at liberty to sell the Goods, including the Goods into which the Supplier’s Goods have been mixed, in the ordinary course of its business, and the Purchaser shall hold the proceeds thereof in trust for the Supplier and promptly account to the Supplier for those proceeds in payment of the purchase price for the Goods.

(d)      The Purchaser and the Supplier agree that the provisions of this clause apply notwithstanding any agreement between the parties under which the Supplier grants the Purchaser credit.

9.       WARRANTIES AND EXCLUSIONS OF LIABILITY

(a)      The Supplier warrants that the Goods when delivered to the Purchaser will comply with any description for the Goods contained in the relevant Sales Confirmation (if any). The Supplier is not required to supply Goods with any specification or characteristics that are outside the terms of the Sales Confirmation.

(b)      The Purchaser acknowledges, agrees and warrants that as the Purchaser’s intended use of the Goods is outside the control of the Supplier, the Purchaser is satisfied that the Goods when supplied in accordance with clause 9(a) above shall be fit for purpose.

(c)      The Purchaser releases and indemnifies the Supplier and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those done by third parties) which may be brought against it or them, whether on their own or jointly with the Purchaser and whether at common law, in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness, cost or damage arising out of any breach by the Purchaser of any warranty provided by it under paragraph (b) of this clause.

(d)      Except as expressly set out in the Contract and except for liability under any Prescribed Terms, to the full extent permitted by law:

(i)    all conditions, warranties, guarantees, terms and obligations expressed or implied by law or otherwise relating to the Contract or the performance of the Supplier obligations under the Contract or to any Goods or services supplied or to be supplied by the Supplier under the Contract are excluded, except for those conditions and warranties as to title in the Goods; and

(ii)    without limiting the generality of the foregoing, the Supplier gives no condition, warranty or guarantee whatsoever as to the suitability, performance or fitness of the Goods for their ordinary or any special use or purpose, and the description of the Goods in any Contract or any other document shall not import any such condition, warranty or guarantee on the part of the Supplier; and

(iii)    the Purchaser accepts that any issues in relation to the manufacturer’s warranty with respect to the Goods which have been purchased from the Supplier shall be addressed to the manufacturer; and

(iv)    It is the Purchaser’s responsibility to ensure that all applicable health and safety regulation are complied with and appropriate steps are taken in relation to the storage, handling and the use of the Goods and where the manufacturer supplies information to the Purchaser on the potential hazards relating to the Goods, such information must be brought to the attention of its employees, agents, sub-contractors, visitors and customers.

(e)      Notwithstanding anything to the contrary herein but subject to the provision of any Prescribed Terms, the Supplier’s liability in respect of any Claim arising in any way out of the Contract or its performance or from any failure to perform the Contract including (without limiting the generality of the foregoing) for breach of any condition, warranty or guarantee contained in the Contract or in any Prescribed Term implied into or applying to the Contract, and whether that liability arises under contract, tort (including negligence), breach of statutory duty or otherwise, is limited as follows:

(i)    If any guarantee under the Act is applicable to any good or service supplied by the Supplier and the Supplier’s liability is due to a failure to comply with the guarantee and such failure cannot be remedied or is a major failure as defined in the Act (each failure hereafter referred to as a Relevant Failure), the Supplier’s liability is as stated in the Act in respect of that Relevant Failure.

(ii)    if the liability is due to a failure to comply with any condition, warranty or guarantee in respect of any Goods supplied by the Supplier under the Contract and such failure is not a Relevant Failure, the Supplier’s liability is limited.

(f)      To the extent permitted by law, the Supplier will have no liability to the Purchaser whatsoever arising under any cause of action in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity out of or in connection with the Contract or its performance.

10.      INDEMNITY

The Purchaser shall keep the Supplier, its servants and agents, indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including but not limited to claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Purchaser or which the Purchaser may sustain, pay or incur as a result of or in connection with the sale and use of the Goods unless such costs, claim demanded, expense or liability shall be directly and solely attributable to any breach of contract or guarantee by, or negligence of, the Supplier or its duly authorised officers and/or agents.

11.      ALTERATION TO TERMS AND CONDITIONS

The Supplier may vary at any time these terms and conditions and any variation of the standard terms and conditions shall be referred to in the invoice for the supply and/or quotation to supply Goods at the relevant time.

12.      FORCE MAJEURE

The Supplier shall not be under any liability whatsoever for the consequences of any failure on its part to perform or delay in performing any obligation under the Contract if such failure or delay is due directly or indirectly to any Event of Force Majeure.

13.      ASSIGNMENT

The Purchaser accepts and acknowledges that it is not entitled to assign or otherwise transfer any of its rights and/or entitlements under any agreement between the Supplier and the Purchaser and any of its rights or obligations under the Contract whether in whole or in part without the prior written consent of the Supplier.

The Purchaser accepts that any such unauthorised assignment will be deemed null and void and shall have no effect on the Supplier and in addition, void all warranties.

14.      PERSONAL PROPERTY SECURITIES ACT 2009 (AUSTRALIA ONLY)

(a)      The terms “Collateral”, “Debtor”, “Financing Change Statement”, “Financing Statement”, “Grantor”, “Proceeds”, “Secured Party”, “Security Agreement” and “Security Interest” have the meanings given in the PPSA.

(b)      The Purchaser acknowledges and agrees that by accepting these terms and conditions which form part of the Contract and constitute a Security Agreement that covers the Collateral for the purposes of the PPSA:

(i)    The Supplier holds (as Secured Party) a Security Interest over all of the present and after acquired Goods supplied by the Supplier to the Purchaser and any Proceeds of the sale of those Goods (“Collateral”);

(ii)    that any purchase by the Purchaser on credit from the Supplier or retention of title supply pursuant to clause 7 hereof will constitute a purchase money security interest as defined under section 14 of the PPSA (“PMSI”);

(iii)    The PMSI granted herein will continue to apply to any Goods coming into existence or proceeds of sale of Goods coming into existence;

(iv)    The Supplier will continue to hold a Security Interest in the Goods in accordance with and subject to the PPSA, notwithstanding that the Goods may be processed, comingled or become an accession with other Goods;

(v)    any Supplier Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all registered or unregistered Security Interest;

(vi)    until title in the Goods pass to the Purchaser, it will keep all Goods supplied by the Supplier free and ensure all such Goods are kept free of any charge, lien or Security Interest and not otherwise deal with all Goods in a way that will or may prejudice any rights of the Supplier under the Contract or the PPSA; and

(vii)    in addition to any other rights under these terms and conditions and/or otherwise arising, the Supplier may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including but not limited to entry into any building or premises owned or used by the Purchaser, to search for and seize, dispose of or retain those Goods in respect to which the Purchaser has granted a Security Interest to the Supplier.

(c)      The Purchaser undertakes to:

(i)    sign any further documents and provide such information which the Supplier may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;

(ii)    indemnify and upon demand reimburse the Supplier for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests;

(iii)    not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of the Supplier;

(iv)    provide the Supplier not less than 7 days prior written notice of any proposed change in the Purchaser’s name, address, contact numbers, business practice or such change in the Purchaser’s details registered on the PPS Register to enable the Supplier to register a Financing Change Statement if required.

(d)      The Supplier and the Purchaser agree that sections 95, 125 and 132(3)(d) and 132(4) of the PPSA do not apply to the Security Agreement created under any Contract.

(e)      The Purchaser hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

(f)      The Purchaser waives its rights as a Grantor and/or Debtor under sections 142 and 143 of the PPSA.

(g)      Unless otherwise agreed to in writing by the Supplier, the Purchaser waives its rights to receive a verification statement in accordance with section 157 of the PPSA.

(h)      The Purchaser shall unconditionally ratify any actions taken by the Supplier under this clause 14.

(i)       This clause 14 will survive the termination of this Contract to the extent permitted by law.

15.      GST (AUSTRALIA ONLY)

The Purchaser and the Supplier agree that:

(a)           the purchase price is inclusive of GST;

(b)           the Purchaser shall comply with its obligations if the whole or any part of any payment is not for a taxable supply and the Supplier and the Purchaser shall when calculating the amount of any payment adjust such payment accordingly.

16.      DISPUTE RESOLUTION

(a)      If a dispute arises between the Purchaser and the Supplier, the following procedure applies:

(i)    A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.

(ii)    A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this clause.

(iii)    A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this clause.

(b)      If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within five (5) business days (or other period as agreed).

(c)      Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to the ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and costs involved. The terms of the Guidelines are incorporated into these terms and conditions. This clause survives termination of these terms and conditions.

(d)      Notwithstanding the existence of a dispute (including referral of the dispute to mediation), each party must continue to perform its obligations under these terms and conditions.

(e)      The parties hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of an offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

17.      GOVERNING LAW

The terms and conditions of this agreement are governed and construed in accordance with the laws of New South Wales, Australia. The Supplier and the Purchaser submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

Doc ID: IM101-POL-0009_2, Issue Date: 05/08/2014, Issue: 2

STANDARD TERMS AND CONDITIONS: PROVISION OF SERVICES

Certain legislation in Australia may provide consumer guarantees or impose obligations on the Supplier which cannot be excluded, restricted or modified, or only to a limited extent. The terms and conditions contained in this document are subject to such legislation, including but not limited to Australian Consumer Law.

1.      INTERPRETATION

In this document and in any Contract to which these terms and conditions apply, unless inconsistent with the context:

(a)      the Act means the Competition and Consumer Act 2010;

(b)      Agreement means all agreements or other arrangements of which these Terms and Conditions constitute an integrate part, entered into by the Supplier with the Purchaser.

(c)      Claim means any claim, demand, action or proceeding;

(d)      Contract means the contract between the Supplier and the Purchaser for or in relation to the sale and purchase of Services and incorporates the Purchase Order and these Terms and Conditions;

(e)      Event of Force Majeure includes but is not limited to any acts of God, war, riots, strikes, lock outs, trade disputes, fires, breakdowns, mechanical failures, interruptions of transport, government action or any other action outside the reasonable control of the Supplier.

(f)      GST means the Goods and Services Tax imposed by the Australian Federal Government together with any related interest, penalties, fines or other charges as provided by the New Tax System (Goods and Services Tax) Act 1999 or any act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under such an Act.

(g)      Intellectual Property Rights means any and all intellectual throughout the world including rights in respect of or in connection with:

(i)       copyright;

(ii)      inventions (including patents);

(iii)     trademarks, service marks; and

(iv)      designs, circuit layouts,

whether or not now existing, and whether or not registered or registrable and includes any right to apply for the registration of such right and includes all renewals and extensions.

(h)      Prescribed Terms means any terms, conditions, guarantees and warranties which the Act and any other law expressly provides may not in respect of the Contract be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent;

(i)      Purchase Order means the written or electronic order from the Purchaser to the Supplier for Services to be purchased by the Purchaser from the Supplier under these terms and conditions containing amongst other things, a description of the Services;

(j)      Purchaser means the person, corporation or statutory body who buys the Services from the Supplier;

(k)      Quotation means the form of quotation submitted by the Supplier to the Purchaser in which these terms and conditions have deemed to be incorporated.

(l)      Report means all documents created by the Supplier or its agents, sub-contractors, consultants and employees in relation to its performance of the Services.

(m)     Sales Confirmation means the documents, letter or email issued by the Supplier that formally accepts the order for Services from the Purchaser or the document issued by the Purchaser confirming written acceptance for the supply of Services;

(n)      Services means the services as detailed in the Quotation to be provided by the Supplier to the Purchaser in accordance with these Terms and Conditions.

(o)      Site means the place where the Services are to be performed.

(p)      Supplier means IMATECH BULK MATERIAL HANDLING PTY LTD.

(q)      Headings and underlining are for convenience only and do not affect the interpretation of this document;

(r)      A word or expression in the singular includes the plural, and the other way around;

(s)      Words importing a gender include any gender;

(t)      A reference to a person or words denoting a person includes any company, statutory corporation, partnership, joint venture, association, board, government or semi government agency or authority and that person’s successors and legal personal representative.

2.      GENERAL

(a)      Subject to any Prescribed Terms, these terms and conditions together with the relevant Purchase Order, Quotation and/or Sales Confirmation embody the sole terms and conditions of the Contract between the Supplier and the Purchaser and supersede all other conditions and agreements between the parties, unless expressly amended in writing by the Supplier.

(b)      These terms and conditions shall without further notice apply to all future transactions between the Supplier and the Purchaser in relation to the sale and purchase of services, whether or not this document is delivered or executed in the course of the transaction and the Purchaser acknowledges that they have read and understood these terms and conditions.

(c)      All Purchase Orders supplied by the Purchaser are subject to acceptance by the Supplier and no Contract between the Supplier and the Purchaser comes into existence until the Supplier issues a Quotation and Sales Confirmation in relation to the order.

(d)      Subject to clause 12 hereof, no variation or cancellation of these terms and conditions shall be effective unless it is evidenced in writing and signed on behalf of the Supplier.

3.      QUOTATION

(a)      The price of the Services will be in accordance with the Quotation provided by the Supplier.

(b)      A Quotation provided by the Supplier is fixed and remains valid for a period of thirty (30) days from the date of the final quotation unless:

(i)    otherwise set out in the Quotation; or

(ii)    agreed to in writing between the Purchaser and the Supplier.

(c)      The Purchaser acknowledges that the Quotation is not to be construed as an obligation to provide services to the Purchaser and no contractual relationship shall arise from a Quotation issued by the supplier until such time as a Sales Confirmation in relation to the order has been issued by the Supplier.

4.      PURCHASER ORDERS

(a)      Every order by the Purchaser must be submitted in writing.

(b)      A Purchase Order will not be accepted by the Supplier unless the Purchase Order clearly identifies the services ordered and/or the Supplier’s Quotation. Any costs incurred by the Supplier in reliance on incorrect or inadequate information may result in additional charges being incurred by the Purchaser.

(c)      The Supplier may in its absolute discretion refuse to provide the Services where:

(i)     credit limits cannot be agreed upon or have been exceeded; or

(ii)    payment for services previously provided to the Purchaser or any related corporation of the Purchaser or to any other party who is, in the reasonable opinion of the Supplier, associated with the Purchaser under the same or another supply contract, has not been received by the Supplier

5.      PAYMENT

(a)      Unless otherwise agreed to by the parties in writing, payment by the Purchaser shall be made in full prior to commencement of the Services; or

(b)      If credit terms have been expressly agreed to in writing by the Supplier, payment shall be made in accordance with the terms of credit agreed to between the Supplier and the Purchaser.

(c)      Time for payment of the price of the Services shall be of the essence, and if the Purchaser fails to pay the price when due, the Supplier may treat the Contract as repudiated by the Purchaser and may suspend performance of the Services, the subject of the Contract, and any services the subject of any other Contract with the Purchaser without incurring any liability whatsoever to the Purchaser in respect thereof.

(d)      If the Purchaser fails to make payment in accordance with this clause, the Purchaser shall pay in addition to the purchase price and/or such other amounts that are due and payable to the Supplier, a sum equivalent to the business overdraft rate published from time to time by the National Australia Bank Limited of Australia until all amounts payable to the Supplier have been paid in full.

6.      PURCHASER’S CANCELLATION

(a)      After a Sales Confirmation has issued, the Purchaser shall not be entitled to cancel an order unless the express written authority of the Supplier is obtained.

(b)      Where a Purchaser cancels or terminates a Sales Confirmation the Purchaser indemnifies the Supplier against any losses incurred by the Supplier as a result of the cancellation, including but not limited to loss of profit from other orders foregone as a result of the scheduling of the Purchase Order which is subsequently cancelled.

7.      PURCHASER OBLIGATIONS

(a)      The Purchaser shall provide the Supplier with all information required to enable the Supplier to perform the Services.

(b)      Where the Services are to be provided at a Site, the Purchaser must provide the Supplier with access to the Site to enable the Supplier to provide the Services. If access to the Site is unavailable for any reason other than the fault of the Supplier and the Supplier’s personnel are standing by to access the Site, the Purchaser must pay the Supplier’s usual hourly rates for the standby time unless otherwise agreed in writing by the Supplier. The Supplier may also charge the Purchaser for all reasonable travel, accommodation and meal costs of the Supplier’s personnel related to or in connection with the provision of the Services during the period of delay.

(c)      The Purchaser must ensure that the Supplier has access to power, water, telecommunication infrastructure, toilets and other amenities and any other general utilities at the Site necessary to allow the Supplier to provide the Services. The Purchaser must ensure that the Site complies with all applicable statutes, codes, laws and regulations, including but limited to those laws and regulations relating to health, safety, environment and fire matters. If the Supplier considers, in its reasonable opinion, that the Site is unsafe, the Supplier may suspend the performance of the Services until such time as the Purchaser makes the Site safe. In such circumstances, the Purchaser must reimburse the Supplier for all losses and expenses incurred in connection with the delay at the Supplier’s usual hourly rates unless agreed in writing by the Supplier.

(d)      The Purchaser shall maintain at its own cost, all applicable insurance policies with a reputable insurance company to cover the potential liabilities which the Purchaser may have to the Supplier in connection with the Services and at the Supplier’s request shall produce such evidence of insurance as required by the Supplier.

8.      WARRANTIES AND EXCLUSIONS OF LIABILITY

(a)      The Supplier gives no warranty in relation to the Services provided by it. Under no circumstances is the Supplier, its servants and/or agents liable or responsible in any way to the Purchaser or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Services provided including in their form, content, failure of performance, error or omission.

(b)      Any Report, advice, recommendation, information, assistance or service given by the Supplier is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept liability or responsibility for any loss suffered as a result of the Purchaser’s reliance on such Report, advice, recommendation, information, assistance or service.

(c)      To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of the Services, or otherwise arising out of the provision of the Services, whether based on negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.

9.      OWNERSHIP OF INTELLECTUAL PROPERTY

(a)      All Intellectual Property Rights arising out or in connection with the provision of the Services by the Supplier to the Purchaser (including any Reports) vests in the Supplier and nothing in these terms and conditions confers any Intellectual Property Rights on the Purchaser. The Supplier retains ownership and title to any such Reports.

(b)      The Purchaser grants to the Supplier, its agents and sub-contractors, a non-exclusive royalty-free licence to make use of any Intellectual Property Rights owned by the Purchaser as at the commencement date of the Contract or otherwise carried out with the scope of the Contract, for the duration of the Contract for the purposes of carrying out the Services.

10.     INDEMNITY

The Purchaser shall keep the Supplier, its servants and agents, indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including but not limited to claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Purchaser or which the Purchaser may sustain, pay or incur as a result of or in connection with the sale and use of the goods unless such costs, claim demanded, expense or liability shall be directly and solely attributable to any breach of contract or guarantee by, or negligence of, the Supplier or its duly authorised officers and/or agents.

11.     RETENTION OF DATA

All information and data acquired by the Supplier by virtue of the supply of Services will be treated by the Supplier as confidential and will not be divulged by the Supplier in whole or in part to third persons without the prior written consent of the Purchaser except as is properly and reasonably required for the purpose of review by any advisor, consultant, expert, contractor or subcontractor employed or retained by the Supplier or if required to release such information by law.

12.     ALTERATION TO TERMS AND CONDITIONS

The Supplier may vary at any time these Terms and Conditions and any variation of the standard terms and conditions shall be referred to in the Sales Confirmation for the supply and/or quotation to supply Services at the relevant time.

13.     FORCE MAJEURE

The Supplier shall not be under any liability whatsoever for the consequences of any failure on its part to perform or delay in performing any obligation under the Contract if such failure or delay is due directly or indirectly to any event of force majeure.

14.     ASSIGNMENT

The Purchaser accepts and acknowledges that it is not entitled to assign or otherwise transfer any of its rights and/or entitlements under any agreement between the Supplier and the Purchaser and any of its rights or obligations under the Contract whether in whole or in part without the prior written consent of the Supplier.

The Purchaser accepts that any such unauthorised assignment will be deemed null and void and shall have no effect on the Supplier and in addition, void all warranties.

15.     DISPUTE RESOLUTION

(a)      If a dispute arises between the Purchaser and the Supplier, the following procedure shall apply:

(i)    A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.

(ii)    A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this clause.

(iii)    A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this clause.

(b)      If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within five (5) business days (or other period as agreed).

(c)      Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, within the time prescribed by clause 15b herein the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to the ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and costs involved. The terms of the Guidelines are incorporated into these terms and conditions. This clause survives termination of these terms and conditions.

(d)      The parties hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of an offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

16.     GST (AUSTRALIA ONLY)

The Purchaser and the Supplier agree that:

(a)          the purchase price is inclusive of GST;

(b)          the Purchaser shall comply with its obligations if the whole or any part of any payment is not for a taxable supply and the Supplier and the Purchaser shall when calculating the amount of any payment adjust such payment accordingly.

17.     GOVERNING LAW

The terms and conditions of this agreement are governed and construed in accordance with the laws of New South Wales, Australia. The Supplier and the Purchaser submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

Doc ID: IM101-POL-0017_1, Issue Date: 05/08/2014, Issue:1