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1. DEFINITIONS
1 “COMPANY” means Inline Engineering Services Pty Ltd.
1.1 “CONTRACT” means the contract between the company and the customer, including the customers order and these Standard Terms and Conditions.
1.2 “CUSTOMER” means any person, partner of a partnership, partnership, firm or company who places an order with the company.
1.3 “MATERIALS” means the materials supplied by the customer free of charge to the company for the purpose of the contract.
1.4 “ORDER” means the customers order to which these Standard Terms and Conditions shall apply.
1.5 “SERVICES” means the supply of services and shall apply to the supply of goods if appropriate in the circumstances.
2. GENERAL
2.1 These conditions represent the entire terms of agreement between the customers and the company relating to the sale of the goods and the customer agrees that it places no reliance whatsoever on any representations, agreements, statements or understandings other than those expressly incorporated in these conditions.
3. TENDER
3.1 The company’s tender is an invitation to treat within the period stated therein or, if no period is stated, within 30 days from the date of the tender, but the company reserves the right to withdraw any tender at any time.
4. ORDER AND ACCEPTANCE
4.1 The customers order must be in writing and must be accompanied by sufficient information to enable the company to proceed forthwith if the order is accepted, but no binding contract shall exist between the company and the customer until despatch by the company of its written acceptance of the order after which the order cannot be unilaterally cancelled by the customer and a binding contract shall exist which the company will only be prepared to vary or cancel the terms which fully indemnify the company against all cost incurred and any loss which may arise as a result.
5. DESCRIPTION OF GOODS
5.1 All information supplied in relation to the goods to the customer by the company before an order is placed (including but not limited to the company’s tender) and the specifications, descriptions and the illustrations contained in the company’s catalogues, pamphlets, price lists and any other advertising matter including preliminary drawings are approximate being a general description by way of identification only and such information and descriptions shall not in any circumstances constitute a sale by description, nor shall any statement in any such document, or any other statement made, whether orally or in writing, by or on behalf of the company be deemed to be a representation by which the customer has been induced to enter into the contract.
5.2 Specifications, descriptions, drawings, dimensions, illustrations and performances contained in the company’s catalogues, publications, price lists and other advertising matter do not form part of the contract.
5.3 Unless otherwise expressly agreed in writing, any specimen of goods which may be submitted by the company to the customer is intended for the purpose of identification and illustration only and the contract shall not be deemed to be a contract for the sale of goods by sample.
5.4 Certified outline drawings will be supplied if necessary after the receipt by the company of the customer’s written order, but the company does not undertake to supply copies of detailed drawings.
6. TESTS, INSPECTIONS AND PERFORMANCE
6.1 If the contract so provides, the company will give reasonable notice to the customer of the date on which and the time at which any inspections of or any tests on the goods are to be made so as to enable the customer to attend if it so desires. Any inspections or tests which the company may agree, at the request of the customer, to in addition to those which it normally undertakes shall be paid for by the customer and their cost shall be added to the contract price.
6.2 Any performance figures given by the company are based on experience and are those the company expects to obtain on test but the company shall not be liable for any failure to obtain the figures given.
6.3 The customer shall form its own judgement as to the suitability of the goods and the sufficiency of their rated performance and capacity for its requirements. The company does not assume any responsibility or give any undertaking with regard to the suitability of the goods for the customer’s requirements and in entering into any contract with the customer does so with the assumption that the customer exercises its own skill and judgment in the selection of goods to meet its requirements.
7. DELIVERY AND RISK
7.1 The time for delivery is not the essence of the contract. Any date or period quoted for the delivery is an estimate only and the company shall not be liable for any loss or damage, whether direct or consequential and whether suffered by a customer or third party, resulting from any delay in delivery of or failure to deliver the goods, howsoever caused.
7.2 Delivery shall be deemed to have been made on the earlier of:
7.2.1. The despatch of the goods from the company’s works or (where they are to be collected by the customer) on the receipt by the customer of notice from the company that the goods are ready for collection: or
7.2.2. The expiration of 7 days from the despatch by the company to the customer of written notice stating that the manufacture or despatch or collection of the goods cannot be completed or carried out due to failure of the customer to supply parts, materials or information required or by the failure of the customer to inspect the goods or any other act or omission by the customer which results in the company being unable to complete the contract and that the company therefore requires the customer to accept the goods as they stand.
7.3 The risk of the goods and the responsibility for insuring the goods shall pass to the customer on delivery as defined by condition 7.2
8. PACKAGING AND SHIPPING
8.1 The customer shall give the company despatch instructions (including any special marking of packing cases) and identify the packaging standard required at the time of placing its order.
8.2 If the company agrees at the request of the customer to arrange for the shipment of the goods to overseas it will do so at the sole expense and risk of the customer and as an agent of the customer, which hereby authorises the company to enter onto any contracts with third parties for or relating to the shipment of the goods as such agent and undertakes forthwith on demand to pay and to indemnify the company against imposts, dues, taxes, fees or other charges involved in the export of the goods from Australia or other country of export or their importation into any other country.
9. STORAGE
9.1 If by reason of any default by the customer the goods are not dispatched or as the case may be collected from the company’s works within 14 days from delivery as defined by condition7.2 the company shall be entitled in addition and without prejudice to any other rights and remedies which it may have against the customer in respect to such default:
9.1.1. To store the goods at the sole risk of the Customer making an appropriate charge to the customer for storage and/or;
9.1.2. To give written notice to the Customer requiring it forthwith to remove the goods from the Company’s premises or from any other premises at which the goods may be stored.
9.2 If the Customer fails to comply with the notice referred to at 9.1.2 above within 21 days from the date of such notice the Company shall be entitled to sell or otherwise to dispose of the goods and shall be under no obligation to account to the Customer for the proceeds of such sale or other disposition except to the extent that such proceeds and the value of an payments already made by the customer (other than any deposit paid, or advance payments expressed to be non-returnable) may exceed the amount owing to the Company in connection with the transaction. The Company shall be entitled in addition to its other rights and remedies as aforesaid to be credited or paid by the customer for its charges and all expenses incurred in storage of the goods and for any costs and expenses incurred for the sale or other disposition of the goods by the Company.
10. PRICE
10.1 The price quoted by the Company is the ex-works price, unless otherwise agreed upon by way of written notice to the Customer by the Company.
10.2 All prices quoted by the Company are specified in Australian dollars unless otherwise advised by the Company in writing. All prices quoted by the Company in another currency may be subject to exchange variation.
10.3 Should the company incur extra costs due to suspension of the work by reason of the Customer’s instructions or lack of instructions, or for any other cause for which the Customer is responsible, such extra costs shall be added to the contract price and paid for accordingly.
10.4 The certificate of the Company’s Auditors as to the correctness of any increase made pursuant to this condition 10 shall be forwarded if required and shall be accepted as final.
10.5 The contract price shall be exclusive of sales tax and any other relevant government charge (e.g. Goods and Services Tax) unless otherwise specified in the contract.
11. PAYMENT
11.1 Unless otherwise agreed in writing, payment will be due 30 days from invoice date.
11.2 The Company shall be entitled to treat any failure by the Customer to pay the contract price or any part of the contract price on the due date for the payment thereof as a repudiatory breach of Contract whereby the Company is discharged from the further performance of its obligations (including its obligation to make deliveries or further deliveries) under the Contract.
11.3 The Company reserves the right to charge interest at a rate of 3% above the rate per annum certified by the Company’s banker for the time being to correspond to that bank’s reference, base or indicator rate for unsecured overdrafts in excess of $100,000 on a daily basis on any and all amounts for payment to the Company by the Customer. Any such interest due under this clause 11.3 accrues as a debt due and payable on demand.
11.4 In addition and without prejudice to any other rights of set-off to which the company may be entitled whether by statute, at common law, by custom or otherwise, the Company shall be entitled. (if elects to do so);
11.4.1 To set-off all or any debts and liabilities (whether present or future, certain or contingent and whether ascertained or not) which the Company may owe to the Customer on any account what-so-ever against all or any such debts and liabilities which the Customer may owe the Company on any account what so ever; and
11.4.2 For the purpose of this condition only, to treat any such debt or liability as which is owed by any subsidiary or associate company of the Company to the Customer or by the Customer to any such subsidiary or any associated company of the Company as a debt or liability to which the right of set-off conferred on the Company by sub-paragraph 11.4.1 above applies.
11.4.3 The Customer has no right of set-off, unless agreed in writing by the Company.
12. CUSTOMERS PATTERNS OR OTHER PROPERTY
12.1 The Company will not be responsible for loss of or damage to the Customers patterns or other property whilst in the Company’s possession or in the course of being returned to the Customer, how-so-ever such loss or damage may be occasioned. Such materials are placed with the Company entirely at the risk of the Customer and should be insured by the Customer as appropriate.
13. WARRANTY
13.1 These conditions do not exclude, restrict or modify any condition, warranty, guarantee right or remedy implied by law (including the Trade Practices Act 1974) and which can not be excluded, restricted or modified.
13.1.1 The warranty contained in this clause 13 is in addition to any warranty that by the Trade Practices Act is implied into these conditions and which by that act cannot be excluded (the “implied warranty”).
13.2 The term of this warranty shall not be extended by the fact that a defect was latent or that it was not or could not have been discovered by the Customer within the of 6 month period.
13.3 The Company shall have no obligation under this warranty unless:
13.3.1 The customer shall have paid in full for all goods and/or services supplies to it by the Company; and
13.3.2 The Company is notified of the defect in writing within 14 days of such defect becoming apparent; and
13.3.3 The Goods are manufactured by the Company and the Company deems that the alleged defects have arisen solely from faulty materials or workmanship; and
13.3.4 The Goods which are alleged to be defective are returned to the Company’s works with transportation charges pre-paid, unless the Company advises otherwise; and
13.3.5 The Customer furnishes satisfactory evidence that the Goods alleged to be defective have been properly installed and maintained, correctly lubricated, operated only under normal conditions with competent supervision and within load limits for which the goods are designed.
13.4 The warranty shall not apply to:
13.4.1 Goods which have been subjected to misuse, abuse, neglect or improper storage, handling or maintenance or which have been damaged after leaving the Company’s works, and/or
13.4.2 Parts, accessories, and components supplied by the Company but manufactured by others, in respect of which the Company shall only be liable to the Customer if and to the extent that the Company is entitled to be indemnified by the manufacturer (or by the supplier to the company) of the defective item against such liability pursuant to any other warranty or guarantee given to the Company by the manufacturer or supplier.
13.4.3 Any claims for work done by anyone other than the Company to correct any defects unless work is authorised in writing by the Company. Any such unauthorised work will invalidate this warranty.
13.5 The Company warrants to the Customer that:
13.5.1 if manufactured by the Company, the goods shall be free from defects in materials and workmanship appearing to the Customer within 12 months from delivery as defined by condition 7, and/or
13.5.2 if the goods are designed by the Company, to defects resulting from errors in design insofar as such errors may render the goods defective independently of any question or whether they are suitable for the Customer requirements.
13.6 The Company warrants that either:
13.6.1 the Company will repair defective goods covered by the foregoing warranty or
13.6.2 if in the Company’s judgement they cannot be satisfactorily repaired, the Company will provide, at the Company’s option either:
13.6.2.1 A refund of the Contract price of the defective goods, or
13.6.2.2 Replacement goods.
13.7 The Company’s liability under any implied warranty is limited, at the option of the Company, to, in the case of goods:
13.7.1 Repair of the goods, or
13.7.2 (if in the Company’s judgement the goods cannot be satisfactorily be repaired) providing replacement goods, or
13.7.3 The Supply of equivalent goods, or
13.7.4 Under the warranty contained in this condition 13 (in addition to those alternatives), providing a refund of the contract price of the Goods. And in the case of services:
13.7.5 the supply of the services again, or
13.7.6 the payment of the costs of having the services supplied again.
13.8 The Customer acknowledges that, except as referred to in the preceding provision of this condition, all other conditions and warranties, express or implied, statutory or otherwise one expressly excluded.
14. LIMITATION OF LIABILITY
14.1 Subject only to condition 13 and 14 the Company shall not be liable whether in Contract or in Tort or otherwise howsoever in respect of any injury or loss or damage, whether direct or consequential, physical or pecuniary, which may be caused to the Customer or any third Party or to any property or assets of the customer or any third party by reason of any defect, whether of work or materials, and whether resulting from the negligence of the Company or not, in the design, manufacture, installation or repair of any goods, replacement goods or service supplied by the Company or by reason of the use or operation thereof: AND THE CUSTOMER IS ADVISED TO INSURE AGAINST ALL SUCH RISKS.
14.2 Without prejudice to clause 7.1 if the Company shall be found or held liable to the Customer or any Third Party by reason of failure to deliver goods (partial or total) and whether in contract, tort, or otherwise the Company should not be liable for any sum exceeding the Contract price or AU$100,000 which ever shall be the lesser provided that the Company shall, in the case of part delivery receive payment pro rata to the Contract price for the Goods delivered.
14.3 Without prejudice to any rights of indemnity to which, as between the Company and the Customer, the Company may be entitled under condition 24, nothing in this condition or in conditions 15 or 16 contained shall be deemed to exclude or restrict the liability of the Company for death or personal injury resulting from negligence.
15. INSTALLATION
15.1 Where the contract provides for the supervision of installation by the Company the following provisions shall apply:
15.1.1 The Company shall provide the services of a technician to advise upon:
15.1.1.1 The installation of the Goods, and
15.1.1.2 If specified in the tender, the checking for accuracy, testing and commissioning of goods.
15.2 The Customer will at its own expense provide all equipment, labour and other facilities required for the installation of the goods. The skilled and unskilled employees provided by the Customer shall remain the Customer’s servants and under the Customer’s control and the Company shall not be liable for any act or omission of such employees.
15.3 Subject only to condition 14.2, the Company shall not be liable for any injury, loss, or damage whether caused to the Customer or a third party by reason of any errors, omissions, or negligence on the part of the technician appointed by the Company.
16. TEST AFTER INSTALLATION
16.1 Where the contract provides for the testing of Goods on completion of their installation the tests shall be carried out in the presence of the Company and the Customer shall give the Company reasonable notice of the date on which the time at which these tests are to be made.
17. PROPERTY IN THE GOODS
17.1 Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the title and property in the Goods shall not pass to the Customer until their full price and any other sums owing by the Customer to the Company whether under the same or under any other Contract have been paid, notwithstanding that any Bills of Lading or other documents of title to the goods have been delivered to the Customer, or that the Goods have been subject to further process or treatment after delivery or have been affixed to any premises or to any other Goods or have had other goods affixed to them, before such payment is made.
17.2 Pending such payment the Customer shall hold the goods as the Company’s fiduciary agent or bailee, who shall be responsible as such agent and bailee for the safe custody of the goods and shall keep them separate from other goods, mark them in such a manner that they are readily identified as the Company’s Goods, and keep them fully insured for the benefit of the Company which shall have the right at any time to repossess them and to enter any premises without notice for that purpose and to benefit from their insurance.
17.3 The Customer is permitted, notwithstanding the foregoing, to resell the Goods before such payment to the Company, but in the event that:
17.3.1 The Customer shall on request give the Company full particulars of the sub-sales of the goods and shall as between itself and the Company sell the Goods as agent of the Company, shall be accountable to the Company for the proceeds of such sub-sales, shall account therefore to the Company on demand and shall in the meantime hold such proceeds in a separate account so as to be identified as the property of the Company, although as between the Customer and any sub-purchaser the Customer shall sell as principal and is not authorised to purport to bind the Company to sub-purchase:
17.3.2 The Customer shall if so required by the Company assign to the Company the Customer’s right to recover the price of the Goods from any such sub-purchaser or take steps to recover the same for the benefit of the Company and account to the Company therefor.
17.4 If the proceeds of such sub-sales exceed the account payable by the Customer to the Company under condition 17.1, the Company shall refund or credit the difference to the Customer.
17.5 The Company shall be entitled to exercise all and any of its rights under this condition notwithstanding that any period of credit provided by the Contract has not expired at the time when it elects to do so.
18. FORCE MAJEURE
18.1 Should the performance by the Company of any of its obligations under the Contract be prevented, hindered or delayed by or in consequence of any case or event whatsoever beyond the reasonable control of the Company including (but not limited to) any outbreak of hostilities (whether or not involving the Commonwealth of Australia and whether war is declared or not), strikes, accidents, fire, flood, cyclones, delivery to the company of defective materials or components or delay in delivery to the Company of materials or components, or in the event of national emergency, or if the Company’s works shall become either directly or indirectly so engaged on Government Contracts or Contracts under priority directions as to prevent, hinder or delay work on other contracts, the Company shall be entitled at any time, on notice to the Customer, to make partial deliveries or to determine the Contract without liability and without prejudice in any case to the rights which have already accrued to the Company in respect of deliveries already made or work already done.
19. TERMINATION
19.1 If:
19.1.1 The Customer shall make default in or commit any breach of any of the Customer’s obligations to the Company or
19.1.2 Any distress or execution shall be levied upon the Customer, the Customer’s property or assets, or
19.1.3 The Customer shall become insolvent or offer to make any arrangement or compensation with its creditors or commit any act of bankruptcy, or
19.1.4 Any petition or receiving order in bankruptcy shall be presented or made against the Customer, or
19.1.5 The Customer shall be a limited company and any resolution of petition to wind up such Company shall be passed or presented otherwise than for reconstruction or amalgamation, or
19.1.6 A receiver of such Company’s undertaking, property or assets or any part thereof shall be appointed
The Company shall be entitled forthwith to terminate any contract then subsisting between it and the Customer, and, upon written notice of such termination being posted by the Company to the Customer’s last known address, any such Contracts then subsisting shall be deemed to have been terminated, without prejudice to the Company’s accrued rights and existing remedies against the Customer.
20. CANCELLATION
20.1 No order by the Customer on the Company may be cancelled unless the Company consents in writing and the Customer indemnifies the Company against and pays in full all consequential loss suffered by the Company.
21. QUANTUM MERUIT
21.1 Where from any cause whether arising under the contract or otherwise and whether due to the Company’s breach of contract or otherwise, work under the Contract is only partly completed, the Company shall be entitled to Payment on quantum merit in respect of all work done by the Company without prejudice to the Company’s other rights and remedies should non-completion be occasioned by default of the Customer.
22. NO WAIVER
22.1 No time or other indulgence granted by the Company to the Customer shall operate or be deemed to operate as a waiver or suspension of the Company’s rights under these Standard Terms and Conditions of Sale. The Company shall be entitled at any time with or without prior notice to hold the Customer to strict performance of any outstanding or recurring obligations under the contract.
23. INDEMNITY
23.1 The Customer shall indemnify the Company against all damages, penalties, costs and expenses to which the Company may become liable if any work done in accordance with the Customer’s specific instructions involves an infringement of any Registered Design, Patent, Trade Mark, Copyright, Design, Confidential Information or similar protection or other rights of industrial or intellectual property or license belonging to or asserted by any third party.
23.2 The Customer shall indemnify the Company against any loss, damage or expense which may be incurred or sustained by the Company in the handling, defence, compromise or satisfaction of any claims addressed to the Company by any third parties, including but not limited to claims brought by any of the Company’s employees or agents, which arise from any breach on the part of the Customer of any of its obligations under these Standard Terms and Conditions of Sale.
23.3 The Customer shall further indemnify the Company in respect of the handling, defence, compromise or satisfaction of any claims whatsoever by such third parties which may be brought against the company to the extent that the Company shall thereby have incurred any liability or expense arising out of this Contract (including liability resulting from the reasonable compromise of such claims) which is in excess of the obligations assumed by the Company under the Contract as between the Company and the Customer, whether or not such claims arise or are founded upon any breach of Contract or default, including negligence, upon the part of the Company.
23.4 As the Company has no control over the Conditions in which the goods are used, the Customer shall in particular indemnify and keep indemnified the Company in respect of any and all loss, damage, expense and liabilities which the Company may incur or sustain in the handling, defence, compromise or satisfaction of claims in connection with any goods supplied under the contract which may be against the Company under part VA of the Trade Practices Act, by any third parties (including but not limited to any employees or agents of the Customer) or which may be against the Company by any of its suppliers or by any other persons for and indemnity against or contribution towards claims or liabilities under part VA of the Trade Practices Act. The indemnity shall apply whether or not there has been any breach by the Company of its obligations under these Standard Terms and Conditions of Sale and whether or not the Company may have any defence under the said part VA of the Trade Practices Act.
24. TIME LIMIT FOR CLAIMS
24.1 Subject to the provisions of the Trade Practices Act allowing a greater period in which to institute a claim (being provisions which by the Act cannot be excluded), all claims whatsoever by the Customer under or in connection with this Contract shall be extinguished and absolutely barred unless suit is brought within three (3) years:
24.1.1 Of the date when the goods were delivered, or
24.1.2 In the event of non-delivery, of the date falling 28 days after the date of the delivery as defined by conditions 7.2, or
24.1.3 In the event that the Contract provides for services to be performed in respect of installation after delivery to the Customer, of the date when the Company’s performance terminated, provided nevertheless that nothing herein contained shall preclude the Company from relying on any other period of limitation (whether statutory or otherwise) on which it would be entitled to rely apart from this condition.
25. GOVERNING LAW
25.1 it is agreed that the law which applies to this Contract will be the law of WA and the parties will submit to the jurisdiction of the courts of that state.
26. HEADINGS
26.1 The headings in these standard terms and conditions of sale, being for convenience only, shall not affect the construction thereof
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