- These terms apply to each Contract of supply of goods or services made between us as Buyer and you as Supplier.
- These terms prevail over any terms produced by you, unless we agree in writing.
- No employee, agent or contractor of ours may vary or add to these terms without our written agreement signed by one of our Directors.
Goods and Services
- You must supply the goods and/or services set out in the Contract unless we agree in writing to any substitute goods and/or services.
- Each good must be clearly marked with an identifiable product number.
- If you provide us with a quotation for goods and/or services requested by us, such quotation shall constitute an offer for the provision of those goods and/or services capable of acceptance by us issuing an Order but we may increase or decrease the number or goods you are to supply or services you are to provide. Any such variation in the number of goods and/or services ordered will not affect the per unit price charged by you for the goods and/or services, unless we agree in writing.
- Unless otherwise agreed, your quotations remain valid for 12 months from the date given unless before your acceptance you give us written notice that you withdraw or vary the quotation.
- If we place an Order, you must provide the goods and/or services in accordance with the Contract unless we agree in writing.
- You may not cancel an order, nor delay delivery, once you have accepted our order unless we agree in writing.
- Unless your quotation otherwise specifies:
- Prices quoted are for the delivery to our nominated warehouse (FIS).
- Prices are as specified in your quotation and in our Order.
- Prices quoted include packaging to the normal commercial standards, and include any handling charges and GST which must be expressly stated.
- If you are to manufacture the goods for us you must not commence to do so until all jigs, tooling, patterns and other parts of the manufacturing process are correctly prepared to our specifications.
- You will deliver the goods to our nominated warehouse or store or as otherwise specified in the Contract.
- You must arrange for insurance of the goods, in transit, for the full insurable value of the goods.
- You will deliver to us goods or provide services at the date and time specified in the Order and if you do not then without prejudice to our other rights, you will indemnify us against any loss or damages (liquidated or otherwise) we suffer or incur under any agreement with our customer as a result of your delay.
- We may rescind the Contract if you fail to deliver the goods or provide the services within seven (7) days of a date specified in the Order.
- You must notify us at the time of contracting and in any event within seven (7) days before delivery of the goods, if the goods cannot be unloaded by a forklift with a 2,000 kg lifting load.
- You must provide with each delivery a cart note, which includes information about the goods including our product, order and job numbers.
- Goods and/or materials delivered shall be accompanied by the appropriate documentation where specified. This may include but is not limited to material chemical analysis, heat numbers, objective evidence (as defined in ISO 9001:2008 as amended or replaced from time-to-time), material certificates and NDT data.
- Goods delivered are subject to inspection and acceptance or rejection by us.
- An inspector nominated by us must promptly inspect the goods delivered.
- You are entitled to witness the inspection of goods.
- We may reject a delivery of goods if in a random sample:
- any good is not to the specification of the Contract;
- any good contains defects;
- any good that is not clearly identified;
- any good is damaged arising from transport of the goods; or
- there is any material difference between the goods delivered and those ordered or any sample goods supplied by you to us.
- Upon rejection of the goods:
- you as a supplier may advise us to arrange reshipment of the rejected goods to a specified destination within five (5) days of the notice of rejection, or failing that advice we may dump the rejected goods with proof of dumping to be given to you;
- you must pay an unloading charge, a reloading charge, storage charge and the cost of freight to the specified destination or to a dump site and the cost of dumping (as the case may be);
- you alone must insure the rejected goods on any reshipment;
- you must reimburse or credit us for any amount paid by us on account of the price of rejected goods;
- all claims for rejection will be settled by set-off between the parties, or transfer of clear funds from you to us within 30 days of rejection of the goods;
- you must resupply the goods ordered to the required specification as soon as possible.
- Any casting found to be not suitable to end user requirements shall be replaced free of charge and any incurred machining costs shall be reimbursed.
Title and Risk
- Title to the goods shall pass to us on acceptance by us of the goods by us.
- Risk in the goods passes from you to us on acceptance of the goods by us.
- Subject to Clause 20 in respect of goods, we shall make payment, unless otherwise agreed with you in writing, within 60 days of the end of the month in which a valid tax invoice is received by us.
- You may not charge us any interest where we fail to pay your invoice within 60 days of the end of the relevant month of invoice, because we dispute the amount invoiced or the quality of the goods and/or services supplied.
- We may withhold payment of any amount which we dispute is payable or if you are in breach of a Contract we can set off from any payment to you any amount which you owe us under a Contract or otherwise.
- You warrant that the goods are new, of merchantable quality, are fit for the purpose for which they are designed and meet all specifications in the Contract.
- You warrant that the services will be fit for their intended purpose, performed with a high degree of care, skill and diligence and comply with the Contract.
- You warrant that the goods and/or services comply with any applicable standard issued by Standards Australia or, if there is no such applicable standard, then with general industry standards or practice.
- You warrant that the goods will, under proper use, be free from defects for a period specified in the Contract or if no such period is specified for a period of two (2) years from the date of delivery to us.
- If the goods and/or services do not comply with Clauses 31 to 34 inclusive, then without limiting Clause 41 you will at our option either:
- replace the goods and/or re-perform the services;
- pay all costs and expenses incurred by us in replacing the goods and/or re-performing the services; or
- indemnify us in relation to any costs we incur in making a claim under any insurance policy held by us.
- All IP created by you in the course of providing the goods and/or services vests in us upon its creation and, on our request, you will promptly provide us with all documentation evidencing that IP.
- In respect of any of your IP created before, or otherwise than under, a Contract you grant us an irrevocable, world-wide, royalty-free non-exclusive licence to use that IP in connection with the goods and services.
- If we provide IP to you for the purpose of providing the goods and/or services you may only use that IP for that purpose.
- You must keep confidential and not disclose any information (including our IP) provided to you or your employees in connection with us and our business except:
- if we consent in writing;
- the information was known to you before, otherwise as a result of a breach of confidentiality; or
- to the extent required by law or a court order.
Release and Indemnity
- You will provide the goods and/or services at your own risk and, in this regard, you release us from all claims suffered or incurred by you in connection with the provision of the goods and/or services including, without limitation, in connection with any damage or destruction of property and any injury, disease or death of persons.
- You irrevocably indemnify us against all claims suffered or incurred by, or brought, made or recovered by any person against us in connection with the goods and/or services (including arising because of a breach of any warranty in Clauses 31 to 34), any breach of a Contract, any act or omission of you and your officers, employees, agents or contractors whether negligent or other, and any damage or destruction of property or injury, disease or death of person caused or contributed to by you, your officers, employees, agents or contractors.
- You must hold public and product liability insurance covering your liability under each Contract with a reputable Australian insurer for an amount of not less than $20 million and, on request, promptly provide us with copy of the Certificate of Currency.
- We may terminate a Contract by giving seven (7) days’ notice to you if:
- you breach any provision of the Contract and do not remedy that breach within seven (7) days; or
- you become an eternally-administered body corporate or insolvent under administration as defined in Section 9 of the Corporations Act, 2001 (Cth).
- With limiting Clause 43, we may terminate a Contract at any time for convenience by giving 30 days’ notice to you, in which case we will pay your reasonable and substantiated costs not exceeding the price for the relevant goods and/or services.
- A contract of supply is governed by the laws in force in South Australia and the parties submit to the jurisdiction of the courts of South Australia.
Compliance With Laws
- In providing the goods and/or services, you will comply with all applicable laws.
- No failure by you to acknowledge these terms, and no supply of goods in such circumstances, implies that these terms have not been incorporated into, or have been waived in respect of, the Contract.
- You may not assign the Contract or subcontract the supply of goods or performance of the services without our prior written approval. If your ownership changes from the date of the Contract, you must seek our prior written consent.
- The United Nations Convention on Contracts for the International Sale of Goods (1980) does not apply to any Contract.
- You warrant that:
- you will take reasonable steps to ensure that there is no modern slavery in your operations or supply chains, and that you will otherwise comply with all local, national and other applicable laws and regulations regarding modern slavery in the areas in which you operate;
- upon request, you will provide us with information with respect to your operations and/or supply chains and any other information reasonably required by us to enable us to comply with our obligations under the Modern Slavery Act; and
- you will notify us as soon as possible of any confirmed instances of modern slavery, as well as the actions you have undertaken to remedy the default.
- We reserve our right to take whatever corrective action we deem necessary (which may include termination of this agreement) if you fail to comply with this clause or otherwise fail to remedy, or provide an acceptable plan to remedy, any identified instances of modern slavery within a reasonable timeframe.
- In this clause:
- modern slavery has the meaning given in the Modern Slavery Act and generally includes exploitative practices such as slavery, servitude, human trafficking, forced labour, child labour, debt bondage and slavery-like practices.
- Modern Slavery Act means the Modern Slavery Act 2018 (Cth).
“Claims” means any cost, expense, loss, damage, claim, action, proceeding or liability whatever and however arising (whether in contract, tort including negligence or otherwise) and includes legal costs on a full indemnity basis.
“Contract” means the contract for the sale by you and purchase by us of goods and/or services on these terms constituted by us accepting your quotation by issuing an Order; or otherwise issuing and Order.
“Goods” and “Services” means the goods, product and/or services described in an order form received from a Customer which forms part of a Contract.
“GST” has the same meaning as it has in Section 195-1 of A New Tax System (Goods & Services Tax) Act, 1999 (Cth).
“IP” means intellectual property rights.
“Order” means the order form provided by us for the purchase of the goods and/or provision of the services.
“Terms” means these Standard Terms and Conditions of Purchase.
“We”, “Us” and “Our” means Heavymech Pty Ltd ACN 007 682 144.
“You” and “Your” means the person or corporation receiving an Order.