STANDARD TERMS AND CONDITIONS OF TRADE
1.0 Interpretation: These terms and conditions (Conditions) shall apply to and form part of any contract created for the supply of goods, products and materials (Goods) and the provision of related installation and other services (Services) by Heavymech Pty Ltd ABN 79 007 682 144 (Heavymech) and its agents, servants and employees, to a purchaser, who shall include the person, persons, company or business entity to whom Heavymech sells or supplies, or proposes to sell or supply, the said Goods and/or Services (Purchaser).
2.0 General:
2.1 All quotations, tenders, offers, orders and contracts are made or accepted and all Goods and/or Services are subject to acceptance by Heavymech and, if accepted, are supplied subject to these Conditions and any special terms and conditions which are imposed or agreed to by Heavymech from time to time, unless varied in writing by Heavymech; this is notwithstanding anything that may be stated to the contrary on Purchasers’ inquiries or orders that purport to contain the Purchaser’s terms and conditions governing the transaction. For the avoidance of any doubt, unless otherwise expressly agreed to in writing by Heavymech, previous dealings between Heavymech and any Purchaser, or the attempted imposition of additional or alternative terms and conditions by a Purchaser, shall not vary or replace these Conditions or be deemed in any circumstances whatsoever to do so.
2.2 Heavymech may withdraw, revoke or vary a written quotation at any time.
2.3 Heavymech reserves the right to accept or decline, in whole or in part, any order for Goods and/or Services placed by a Purchaser.
2.4 The contract to supply Goods and/or Services to the Purchaser starts on the date Heavymech agrees to supply the Goods and/or Services to the Purchaser. This may not be the date the order is received by Heavymech.
2.5 Wherein the period between acceptance of a quote and delivery of the relevant Goods and/or Services, Heavymech incurs an increase in the cost of producing and/or delivering the Goods and/or Services, Heavymech reserves the right to increase the quoted price of the Goods and/or Services any time prior to delivery (a “price escalation”). The Purchaser shall accept any such price escalation. Otherwise, official quotes issued by Heavymech are valid for a maximum of thirty (30) days from the date of issue (but remain subject to written notice of change or withdrawal at any time) unless specified otherwise in the quotation.
2.6 Additionally, all quoted prices are based on the quantity of work indicated in any quotation, tender, offer, order or contract documents. Heavymech reserves the right to increase the price should the amount of work change due to factors outside Heavymech’s control including but not limited to if quantities originally quoted are varied, if all specifications do not meet those represented by the Purchaser, if any relevant representation made by the Purchaser is incorrect, incomplete or otherwise deficient, or if Heavymech is unable to proceed without interruption and on a normal five (5) day working week. The Purchaser shall accept any such price escalation.
2.7 If a delivery date is specified in any quotations, tenders, offers, orders or contracts, this date is an estimate only and Heavymech is not liable for any delay in delivery.
2.8 If Heavymech is unable to supply the Purchaser’s total order, these Conditions shall continue to apply to the Goods and/or Services supplied.
2.9 These Conditions prevail over any terms and conditions of trade of the Purchaser whether or not any inconsistency arises.
2.10 Each of the provisions of any contract formed is severable from the others in that if at any time one or more of such provisions is or becomes void, invalid, illegal or unenforceable for any reason the remaining provisions of said contract will not be affected.
2.11 Heavymech may alter the range of Goods or Services on offer, without notice to the Purchaser.
2.12 Heavymech reserves the right to supply an order in full or only in part.
2.13 Heavymech may use sub-contractors to supply, or procure the supply of, any part of the Goods and/or Services.
2.14 Time is not “of the essence” in respect of any contract entered into by the Purchaser with Heavymech.
2.15 Failure by any third party to make payment to the Purchaser for Goods and/or Services supplied by Heavymech shall not be valid grounds for non‑payment by the Purchaser.
2.16 The use and disposal of Heavymech’s products are not within its control, regardless of any assistance provided. Heavymech assumes no obligation or liability for the suitability of its products in any specific end use application. It is the Purchaser’s responsibility to determine whether Heavymech’s products are appropriate for the Purchaser’s use and to comply with all regulations, patents etc in this regard.
2.17 Any Goods ordered on behalf of the Purchaser are payable by the Purchaser in full if the Purchaser decides to cancel or amend the order for any reason, at any time.
2.18 No employee, agent or contractor of Heavymech may vary or add to these Conditions, nor alter any quote, without the prior written authority of Heavymech’s General Manager.
2.19 The Purchaser may not cancel an order, nor delay delivery, following acceptance unless Heavymech agrees in writing and payment of Goods supplied up to that time is made by the Purchaser in full and cleared funds.
3.0 Quotations:
3.1 Any quotation or statement of price provided is an invitation to treat only and is not an obligation to sell or offer to supply. Any quotation given on price is an estimate only.
3.2 Acceptance of a quotation by the Purchaser is a contract only for the work detailed in that quotation. Reference in the Purchaser’s acceptance to any matter whatsoever not mentioned in the initial enquiry by the Purchaser (if any) and/or not detailed in Heavymech’s quotation, is to be deemed to be a notification of additional items for which the Purchaser requires a further quotation. Any such additional Goods and/or Services must be agreed in writing.
3.3 Any quotation is made on the basis that the addressee is the Purchaser, and that any order authorisation or contract, formal or informal, will be binding on the addressee or on the basis that the addressee is the agent of a third party with lawful authority to bind its client in a contract for the quoted Goods and/or Services.
4.0 Price:
4.1 The price for the supply of Goods and/or Services may be subject to any price escalation made before or after the acceptance of quotation, order or contract and also during the currency of any order or contract, either made orally or in writing, unless otherwise stated in writing. Unless otherwise indicated, all prices for Goods and/or Services are exclusive of all applicable taxes and charges.
4.2 All prices are based on the quantity of Goods and/or Services indicated by the Purchaser. Heavymech reserves the right to change the price where the quantity of Goods and/or Services change for any reason.
4.3 Within Australia, the price or other amounts quoted exclude GST unless otherwise specified. The Purchaser shall be liable for all excise, sales, GST or any other tax, charge or government impost (domestic or foreign) upon the Goods and/or Services or any part of the Goods and/or Services, or upon the manufacture, use, sale or delivery of the Goods and/or Services, in addition to the purchase price. Where Goods and/or Services are subject to GST, the Purchaser must pay GST at the same time as payment for the Goods and/or Services is made.
4.4 Unless otherwise agreed, prices do not include the cost of delivery of Goods, including but not limited to costs incurred by Heavymech arising out of late notification by the Purchaser of a change to agreed delivery schedule and storage charges where Goods are not collected immediately upon being made available.
4.5 If for any reason the Goods ordered are unavailable, Heavymech reserves the right to substitute alternative goods provided that they are reasonably equivalent in all respects (unless agreed otherwise, in writing).
4.6 These Conditions may be altered by Heavymech on 30 days’ notice.
4.7 All quotations compiled in reliance on documentation provided by the Purchaser or any third party is the subject to amendment where the said documentation proves to be deficient in any way.
5.0 Offer and Acceptance: A quotation by Heavymech is not an offer, and an order given pursuant to any quotation shall not bind Heavymech until accepted by it in writing or by the commencement of the supply of Goods and/or Services. Unless otherwise agreed in writing these Conditions shall be deemed to be incorporated in any contract between Heavymech and the Purchaser. Any terms and conditions contained in any order offer acceptance or other document of the Purchaser which are inconsistent with these Conditions are expressly excluded.
6.0 Performance of Contract: Any date quoted by Heavymech for completion is an estimate only and unless a written guarantee has been given by Heavymech, it shall not be liable to the Purchaser for any loss or damage (even if arising out of the negligence of Heavymech) caused by the failure to complete the supply of Goods and/or Services on or before the quoted date.
7.0 Purchaser’s Property: Any quotations relating to the machining of castings supplied by the Purchaser are based on those items being supplied to Heavymech in a dimensionally correct state and free from any defects such as sand inclusions, porosity, cracks and hard spots, and the Purchaser further warrants that any such items are capable of being machined according to acceptable general practice. Any quotations relating to the machining of fabrications supplied by the Purchaser are based on those items being supplied to Heavymech in a correctly manufactured condition and with acceptable machining allowances. Where Goods of the Purchaser in the care and control of Heavymech are damaged or destroyed Heavymech will only be liable to the extent of any indemnity provided by Heavymech’s insurance (if any) even if the damage or destruction arises as a result of the negligent or wilful act or omission of Heavymech.
8.0 Retention of Title to Goods and PPSA:
8.1 Legal and equitable title to Goods and/or Services sold by Heavymech to the Purchaser will not pass from Heavymech to the Purchaser until the later of:
(a) unconditional payment in full to Heavymech for those Goods and/or Services; and
(b) unconditional payment in full of any and all other amounts owing or unpaid by the Purchaser to Heavymech on any account, including but not limited to in respect of Goods and/or Services previously or subsequently supplied to the Purchaser.
8.2 Payment in full will not be regarded as having been received by Heavymech unless and until payment is made in cleared funds.
8.3 Until such time as title to Goods passes to the Purchaser under Clause 8.1:
(a) the Purchaser will hold the Goods as a fiduciary and as bailee for Heavymech and will be responsible for any loss, damage or conversion of the Goods;
(b) the Purchaser must store the Goods physically separate from the other goods of the Purchaser and in such a manner as to identify the Goods and show clearly that they are owned by and remain Heavymech’s property;
(c) Heavymech may enter any premises owned or occupied by the Purchaser or its agents to take possession of any Goods to which title has not passed and where payment on any account is overdue, or inspect the Goods or inspect the Purchaser’s books and records regarding the Goods at any time (at its discretion);
(d) subject to the Purchaser’s right to possess, use up, sell or otherwise deal with Goods in respect of which title has not passed to the Purchaser under Clause 8.1 not having ceased, and despite the above, the Purchaser may only use the Goods in the ordinary course of the Purchaser’s business, or sell the Goods in the ordinary course of the Purchaser’s business, provided that where the Purchaser sells Goods, it will do so as principal and the Purchaser will have no power to commit Heavymech to any contract or otherwise or to any liability, but as between the Purchaser and Heavymech, the Purchaser will sell as fiduciary agent and hold all proceeds on trust for Heavymech. When the Purchaser is not paid by that third party, the Purchaser must at the request of Heavymech assign its claim against that third party to Heavymech. The Purchaser must pay the stamp duty on any such assignment. For the purpose of perfecting any such assignment the Purchaser irrevocably appoints Heavymech as its agent and holds the book debt arising from such sale and, upon payment of such debt, the proceeds of sale (but only to the extent of the monies and any outstanding interest owing to Heavymech) upon trust for Heavymech; and
(e) the Purchaser must ensure that the Goods are not and will not be subject to any encumbrance or other security interest (including a lien) granted or created in favour of any third party (whether under contract, statute or common law) without Heavymech’s prior written consent. Without limiting Heavymech’s rights, if the Purchaser becomes aware of a third party’s interest in or relating to an encumbrance or other security interest, including a lien, in respect of the Goods, the Purchaser must notify Heavymech immediately in writing and provide Heavymech with all relevant details relating to the encumbrance or other security interest, including the third party’s full name and contact details, the nature of the encumbrance or other security interest and the Goods subject to the encumbrance or other security interest.
8.4 Despite this Clause 8.0, Heavymech is entitled to maintain an action against the Purchaser for payment of the purchase price of Goods and/or Services.
8.5 The Purchaser agrees that Clause 8.1 creates a security interest (including, where applicable, a purchase money security interest, as defined in the PPSA) in Goods (and their proceeds, as defined in Section 31 of the PPSA) supplied by Heavymech to the Purchaser from time to time.
8.6 The Purchaser agrees to do all things necessary and execute all documents required by Heavymech to register each security interest in the Goods, and ensure that Heavymech acquires a perfected security interest in the Goods, under the PPSA.
8.7 Until title to Goods passes to the Purchaser under Clause 8.1, the Purchaser waives its rights under Sections 95, 118, 121(4), 129, 130, 132(3)(d), 132(4) 135, 142, 143, 157(1) and 157(3) of the PPSA, to the extent that is permitted by law. Heavymech may also contract out of any additional provision of the PPSA as determined by Heavymech from time to time, provided that is also permitted under the PPSA.
8.8 Where Heavymech has rights in addition to those under Part 4 of the PPSA, those rights continue to apply.
8.9 The Purchaser agrees that repossession and retention of Goods pursuant to the PPSA will only satisfy so much of the amounts owing by the Purchaser to Heavymech as is equivalent to Heavymech’s estimation of the net realisable value of the Goods, or their cost price (whichever is the lower) as at the date of repossession, and the repossession and retention will immediately extinguish any rights or interest the Purchaser has in the Goods.
8.10 Until title to Goods passes to the Purchaser under Clause 8.1, the Purchaser must not give to Heavymech a written demand, or allow any other person to give to Heavymech a written demand, requiring Heavymech to register a financing change statement under the PPSA in respect of or affecting any Goods, or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA in respect of or covering the Goods.
8.11 The Purchaser will be responsible for payment of any fees (and any other costs) that Heavymech incurs in relation to investigating, perfecting or registering Heavymech’s security interest in the Goods, and those fees and costs may be added as a charge on invoices issued by Heavymech to the Purchaser.
8.12 The Purchaser may not assign or factor the Purchaser’s right and interest in any debt owed by a customer of the Purchaser to the Purchaser on account of the proceeds of sale of any of Heavymech’s Goods by the Purchaser on credit or deferred payment terms, without Heavymech’s prior written consent.
8.13 Subject to Section 275(7) of the PPSA and any provision of any other contract between Heavymech and the Purchaser permitting Heavymech to disclose information, Heavymech and the Purchaser agree that neither of them will disclose, or authorise the disclosure of, information of the kind described in Section 275(1) of the PPSA in relation to these Conditions, any contract or any transaction contemplated by or effected under these Conditions or any contract.
8.14 The Purchaser must notify Heavymech in writing of any change in the Purchaser’s ownership or in the ownership of the Purchaser’s business, or in the directors or address of the Purchaser. Notwithstanding any change in the Purchaser’s ownership/trading structure or any notice by the Purchaser to Heavymech of such change, the Purchaser will remain personally liable for the payment for any Goods and/or Services supplied to, or ordered by, the Purchaser from Heavymech until the Purchaser has received written confirmation from Heavymech that the Purchaser’s account has been closed and full payment has been received by Heavymech.
9.0 Delivery and Acceptance:
9.1 The Goods and/or Services shall be delivered to the Purchaser’s address herein, or as otherwise notified in writing to Heavymech at the time of the order. Alternatively, if Heavymech agrees, the Goods may be collected.
9.2 Delivery is ex Heavymech’s nominated works unless otherwise specified.
9.3 For the avoidance of any doubt, the Purchaser is responsible for arranging collection or delivery of the Goods unless otherwise stated, and Heavymech shall not be liable for any loss, damage, delay or other liability arising whether directly or indirectly from the Goods not arriving by the anticipated delivery date. Delivery costs shall be to the account of the Purchaser.
9.4 The Purchaser must inspect the Goods immediately upon delivery or collection and must immediately (on the same day, before close of business at 5:00 pm) give written notice to Heavymech with particulars of any claim that the Goods are damaged, defective, non-conforming or otherwise not in accordance with the contract. Written notices should be addressed to the General Manager, Heavymech Pty Ltd, 717 Grand Junction Road, Northfield SA 5085. If the Purchaser fails to give that notice, then to the extent permitted by statute, the Goods must be treated as having been accepted by the Purchaser and shall be deemed to be in all respects in accordance with the contract. The Purchaser shall be bound to accept the same.
9.5 The Purchaser must not accept the delivery of Goods and/or Services if at the time it is insolvent or likely to become insolvent.
9.6 Delivery times and dates are estimates only and are not guaranteed. Where Heavymech, suppliers of or sub-contractors of Heavymech are delayed due to unforeseen circumstances or reasons beyond control, Heavymech may make part delivery, suspend delivery, or extend delivery time for the period of the delay.
10.0 Warranty and Heavymech’s Liability on Breach: No conditions, descriptions, representations, statements or warranties on the part of Heavymech given or implied or deduced to be given or to be implied from anything said or written in the negotiations between the parties and their representatives, and any and all statutory or other warranties, conditions, descriptions or representations, expressed or implied by law as to the state, quality, condition or fitness of the Goods are hereby expressly excluded, and are not binding on Heavymech unless set out in these Conditions or unless they cannot by law be excluded from the contract between Heavymech and the Purchaser in which case they are declared to apply without restriction, limit or modification notwithstanding anything inconsistent with these Conditions. The only conditions and warranties that are binding on Heavymech in respect of the state, quality, condition or fitness of the Goods supplied by it to the Purchaser, are those imposed and required to be binding by statute. For the avoidance of any doubt, Heavymech provides no warranties, and shall not be liable, for the Goods where the Goods incorporate material that has been supplied by the Purchaser. To the extent permitted by statute, Heavymech’s liability, if any, for breach of a warranty referred to in this Clause (whether express or implied by law) shall be limited to and completely discharged by (at the sole discretion of Heavymech):
10.1 the replacement of the Goods or the supply of equivalent Goods (where the Goods supplied are defective); or
10.2 the repair of the Goods (where the Good are defective); or
10.3 the payment of the costs of replacing the Goods or of acquiring equivalent Goods (where the Goods are defective); or
10.4 the payment of the costs of having the Goods repaired where the Goods are defective.
The Purchaser acknowledges that it does not rely, and it is unreasonable for the Purchaser to rely, on the skill or judgment of Heavymech as to whether the Goods supplied are reasonably fit for any purpose for which they are being acquired, and that the sale is not a sale of Goods by description or sample. The Purchaser shall take the Goods at its own risk as to their state, quality, condition or sufficiency and fitness for any purpose. Under no circumstance will Heavymech’s liability exceed the purchase price. To the extent possible, Heavymech will pass on to the Purchaser any manufacturer’s or supplier’s warranty in respect of the Goods.
11.0 Exclusion of Damages and Consequential Loss: Heavymech shall in no circumstances be liable for or have any liability (including liability in negligence) for any form of damages (including but not limited to incidental, indirect, special, consequential or general damages or loss, or otherwise due to circumstances beyond Heavymech’s reasonable control) in connection with or arising out of, or loss suffered or incurred as a result of or caused by (whether directly or indirectly), the supply, performance or use of any Goods and/or Services supplied or performed (as the case may be) by Heavymech to or for the Purchaser or any person, or any failure to supply Goods or to perform any Services in excess of the limitation provided in Clause 10.0.
12.0 Indemnity: The Purchaser indemnifies Heavymech, regardless of any negligence on the part of Heavymech, against:
12.1 All losses incurred by Heavymech;
12.2 All liabilities incurred by Heavymech; and
12.3 All costs actually payable by Heavymech to its own legal representatives (whether or not under a costs agreement) and other expenses incurred by Heavymech in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal); arising directly or indirectly as a result of or in connection with the supply of Goods and/or Services by Heavymech to the Purchaser.
The Purchaser must pay to Heavymech all liabilities, costs and other expenses referred to in this Clause, whether or not Heavymech has paid or satisfied them.
13.0 Force Majeure: If Heavymech is prevented from delivering Goods and/or Services for any cause beyond its control it shall be entitled to cancel the contract or the balance of the contract between it and the Purchaser by notice in writing to the Purchaser and the Purchaser shall not have any claim whether in contract, tort or otherwise, for damages against Heavymech in respect of any such cancellation and the Purchaser shall be liable to pay the reasonable charges of Heavymech up to the time of such cancellation. If either party is prevented from or delayed in complying with any obligation (other than to pay money or any obligation already covered in this clause) by an event beyond its control, performance by it of that obligation is suspended during the time, but only to the extent that compliance is prevented or delayed, and where such delay continues for a consecutive period exceeding six (6) months, or otherwise by mutual agreement, the parties may terminate the affected contract.
14.0 Cancellation By Heavymech: In addition to any rights of Heavymech which are implied by the Sale of Goods Act (which shall apply to these Conditions) Heavymech shall be entitled to cancel the contract or the balance of the contract between it and the Purchaser where the Purchaser has not complied with the applicable terms of payment.
15.0 Payment of Price and Failure to Pay:
15.1 Unless an account is held with Heavymech, payment terms are cash or Electronic Funds Transfer upon delivery or collection of Goods or provision of Services. Where an account is held and if not specified in Heavymech’s special terms and conditions, payment of a Heavymech invoice must be made in full within 30 days from end of month, even if any Goods have not been installed or commissioned or Services rendered in full.
15.2 Unless otherwise agreed in writing, if the Purchaser is ordering from a country outside of Australia, Heavymech requires payment in full prior to dispatching the Goods.
15.3 If the Purchaser does not pay Heavymech on time, Heavymech may:
(a) require that all future dealings be on the basis of cash payments upon placing an order;
(b) without notice to the Purchaser, withdraw or vary any credit facilities Heavymech previously provided (if any); and/or
(c) where delivery is by instalment, Heavymech may withhold indefinitely any further instalments until full payment for prior instalments has been made.
In this Clause, the words “cash payments” exclude cheques which have not been cleared by a bank prior to the delivery of Goods.
15.4 If the Purchaser does not pay Heavymech on time it will not be entitled to use any credit facility Heavymech extended to it (if any) until the Purchaser makes a new application for credit, which application may be refused.
15.5 If the Purchaser fails to make payment when due pursuant to these Standard Terms and Conditions of Sale, the amount unpaid will incur compound interest at the rate of 1.5% per month on the amount outstanding, compounding daily, in respect of each day that the amount outstanding remains unpaid (Interest) until the date payment is received. Interest calculated daily will accrue at such a rate after, as well as before, any judgment.
15.6 If the Purchaser fails to pay any amount that is due and payable pursuant to these Conditions, Heavymech reserves the right to suspend or cancel undelivered orders. Heavymech is also entitled to appoint a debt collector or debt collection agency/ies and/or initiate legal action seeking recovery of all monies as well as Interest on the unpaid amount (both before and after judgment, where applicable) and the Purchaser agrees that it will have to pay Heavymech any and all costs it incurs associated with enforcing its rights under these Standard Terms and Conditions of Sale, including – but without limitation – recovery of the unpaid amount, legal costs, administration costs and all other costs relating to debt collection including the cost of appointing, and fees charged by, debt collectors or debt collection agencies.
15.7 Notwithstanding any other remedies available to Heavymech (either pursuant to these Conditions or at law) to recover any amount due and payable to it, if:
– the Purchaser defaults in payment of the price (or any part thereof) for the supply of Goods and/or Services;
– in Heavymech’s opinion the Purchaser will be unable to meet its payment obligations to Heavymech as they fall due;
– a receiver, manager, administrator or controller becomes entitled to take possession of any of the Purchaser’s assets;
– any proceedings are instituted for the Purchaser’s winding up;
– the Purchaser enters into a deed of company arrangement;
– the Purchaser becomes an externally administered body corporate;
– the Purchaser becomes insolvent;
– a change occurs in the ownership of the Purchaser or the ownership of the Purchaser’s business or in its directors; or
– otherwise upon any default or breach of these Conditions,
then, without prejudice to the other rights of Heavymech:
– all amounts owing to Heavymech will, whether or not due for payment, become immediately payable by the Purchaser;
– the Purchaser’s right to possess, use up, sell or otherwise deal with Goods in respect of which title has not passed to the Purchaser will cease;
– Heavymech may immediately cease or suspend the supply of further Goods and/or Services and/or terminate or suspend any orders accepted by Heavymech that have not been performed; and
– Heavymech may initiate proceedings for recovery,
at its complete discretion and without incurring any liability to the Purchaser, without mediating, without giving the Purchaser notice and without affecting any other rights or remedies available to Heavymech. Heavymech may also enter onto any premises where the Goods in respect of which title has not passed to the Purchaser are stored, and take immediate possession of and resell any Goods for which payment remains outstanding. Heavymech is not liable to the Purchaser if it takes any such action. The Purchaser indemnifies Heavymech in respect of any claims or actions against, and costs, expenses and other liabilities incurred by Heavymech in relation to:
– the removal, repossession, transportation, storage and sale of Goods pursuant to these Conditions, including without limitation any claims brought by third parties; and
– any of the matters set in this Clause 15.
The Purchaser is not entitled to any retention from any amount due to Heavymech.
15.8 Heavymech reserves the right to set off against, or deduct from, any monies it at any time owes to the Purchaser on any account, any monies the Purchaser owes to it, but shall not be obliged to do so. The Purchaser is not entitled to set off against or retain any monies from monies owed by the Purchaser to Heavymech.
16.0 Cybercrime Prevention Clause:
16.1 The parties agree that any amounts payable by the Purchaser to Heavymech are to be transferred by the Purchaser via EFT to the Bank Account.
16.2 If the Purchaser:
(a) receives a communication in writing from Heavymech or either in writing or verbally purporting to be from Heavymech to change or modify the Heavymech Bank Account details; or
(b) becomes aware of any actual or suspected fraudulent activity in relation to any communication (written or verbal) purported to be from Heavymech:
then, the Purchaser must immediately verify the legitimacy of the communication. At a minimum the Purchaser must contact the Heavymech Representative on the telephone number known to them as a consequence of their prior dealings and not any phone number included in the written or verbal communication.
16.3 This dual factor authentication process is intended to eliminate the risk of fraud through falsifying banking identification. Heavymech and its Related Bodies Corporate will not be liable to the Purchaser for any loss or damage suffered or incurred by the Purchaser as a result of its failure to comply with Clauses 16.1 and 16.2 of our terms and conditions.
16.4 For the avoidance of doubt, any failure by the Purchaser to comply with Clauses 16.1 and 16.2 of our terms and conditions does not relieve it of its obligation to pay any amount duly owed to Heavymech under our terms and conditions.
17.0 Risk: Heavymech’s responsibility and liability for risk, loss or damage with respect to any Goods supplied passes to the Purchaser from the time that the Goods are allocated to a Purchaser’s order by Heavymech or the time a contract is created, whichever occurs first even if Heavymech is required to install, set up or perform any service in connection with the Goods. The Purchaser must fully insure the Goods from and including the date that risk passes to it.
18.0 Transport Costs: Transport costs including but not limited to delivery fees are at the Purchaser’s expense unless previously agreed otherwise in writing.
19.0 Exclusions: Unless stated otherwise in writing, no allowance has been made in any price quoted (and it is assumed the following will be supplied by the Purchaser, if necessary, free of charge) for:
19.1 tests required by the Purchaser;
19.2 special packaging or tooling requirements not made known to Heavymech and/or not included in any Heavymech offer made to the Purchaser; and
19.3 insurance for Goods and/or Services, whether fixed or unfixed.
20.0 Use of Goods, Purchaser Specifications and Technical Advice and Assistance:
20.1 Where Goods are supplied by it, it is not Heavymech’s practice to recommend or warrant that the Goods are suitable for a particular purpose or use and the Purchaser acknowledges that:
(a) it does not rely upon nor is it reasonable for it to rely upon any opinion of Heavymech in this regard; and
(b) in choosing the Goods the Purchaser has relied entirely on its own knowledge and expertise.
20.2 Heavymech shall not be liable for any error, omission or inaccuracy in any drawings or specifications provided or approved by the Purchaser.
20.3 Heavymech shall not be liable in any circumstances for any technical advice or assistance given or rendered by it to the Purchaser in connection with the supply of Goods save as provided in Clause 10 of these Conditions.
21.0 Specifications: Where, at the Purchaser’s request, Heavymech manufactures Goods to a design, specification, or in compliance with the Purchaser’s instructions or suggestions as to design, materials, method of construction or otherwise, Heavymech shall not be liable for the practicability or performance of (in part or in whole) the output or result of such designs, specifications, instructions or recommendations and shall not be liable for any loss or damage caused to the Purchaser or any other person as a result of defects or inaccuracies caused by reliance on such design, specifications or recommendations.
22.0 Implied Terms: Except as required by mandatory operation of law (or as otherwise expressly provided) all implied conditions are excluded.
23.0 Law of South Australia: The contract between Heavymech and the Purchaser shall be construed and take effect in accordance with and be governed by the laws in force in the State of South Australia and each party submits to the jurisdiction of the courts of the State in relation to any dispute arising out of any contract.
24.0 Dispute: Any dispute or difference between Heavymech and the Purchaser which cannot be settled between the parties by direct negotiation, must be referred to an arbitrator of mutual agreement and, failing agreement, to the Australian Commercial Disputes Centre whose decision in all respects shall be final and binding.
25.0 Assignment:
25.1 The Purchaser may not assign any rights under any contract entered into with Heavymech, without Heavymech’s consent.
25.2 Heavymech may assign or otherwise deal with its rights under any contract entered into with the Purchaser in any manner it considers appropriate. The Purchaser agrees that Heavymech may disclose any information or documents that it considers desirable to enable it to exercise this right. The Purchaser also agrees that Heavymech may disclose information or documents to any person to who it assigns its rights under any contract.
26.0 Definitions:
26.1 “GST” means Goods and Services Tax or other tax that substitutes or replaces the Goods and Services Tax from time to time.
26.2 “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
26.3 “Heavymech Bank Account” means the bank account for Heavymech established prior to September 2022 as set out in our New Bank Details – Heavymech notification dated 01.04.2020.
26.4 “Heavymech Representative” means the employee known to the Purchaser as the person principally responsible for the supply of goods or services to the Purchaser.