TERMS & CONDITIONS

1.
Dictionary
In these Terms and Conditions, the words below have the following meanings:
Agreement has the meaning provided to it in clause 3.2.
Application for Credit means the form approved by the Company which has been completed by the Customer for an account with the Company for the provision of Goods and/or Services.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means any day except a Saturday, Sunday or public holiday in the State.
Change in Control means in relation to a party.
(a)
The person who Controls the party at the date that party first became bound by these Terms subsequently ceases to have Control of the party.
(b)
A person who does not control the party at the date that the party first became bound by these Terms subsequently obtains Control of the party; or
(c)
If the party is Controlled by a group or consortium of persons, or if the group or consortium could Control the party were they to act collectively, any material change in the composition of that group or consortium.
COD means cash on delivery.
Company means QTK Group Pty Ltd (ACN 163 502 332) trading as QTK, Queensland Thermo King and Thermo King Bus Australia.
Confidential Information means all information disclosed by the Parties and includes these Terms and the prices of the Goods or Services but excludes information that:
(a)
A public knowledge or becomes available to the Parties from a source other than the Parties (otherwise than as a result of a breach of confidentiality by a Party or any person to whom it has disclosed the information) or;
(b)
Is rightfully known to, or in the possession or control of the Parties and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.
Consequential Loss means any claim for any loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunities or for any consequential, indirect, special, punitive or incidental damages.
Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.
Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
Control has the meaning given in section 50AA of the Corporations Act 2001 (Cth).
Customer means the entity or person requesting that Goods and/or Services be supplied to it by the Company.
Customer Background Materials means all material in whatever form (including documents, specifications, designs, plans processes, information and data) owned or licensed by the Customer and provided by, or on behalf of, the Customer to the Company for the purposes of an Agreement.
Customer Supplied Equipment has the meaning provided to it in clause 11.1.
Default Rate means the rate which is fixed from time to time under section 2 of the Penalty Interest Rate Act 1983 (Vic.)
Delivery Fee means:
(a)
The delivery or freight fee set out in a Quote or agreed in writing between the parties; or
(b)
If no delivery or freight fee is set out in a Quote or agreed in writing between the parties, the costs of the Company incurred in delivering the Goods to the Customer.
Due Date has the meaning provided to it in clause 4.5.
Force Majeure Event means any events; which are beyond the reasonable control of a party including any fire, failure or shortage of power supplies or raw ingredients, abnormally inclement climate or weather conditions, flood, lightning, storm, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, riot, disease, civil commotion, insurrection, political instability, armed conflict, war, terrorist action, strike or other labour difficulty or shortage, unavailability of transport providers, failure or inability to obtain any licence.
Goods means the goods to be supplied by the Company to the Customer under any Agreement.
GST Act means a New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended, varied or replaced from time to time.
H&S Laws means all applicable laws, regulations, codes of practice and guidelines concerning the health, safety and welfare of people at work, and includes Heavy Vehicle National Laws and Modern Slavery Laws.
Handling Fee means $10.
Heavy Vehicle National Laws means any law imposing obligations in relation to safety concerning the carriage of goods by road, including as to mass, dimension, load restraint, speed, fatigue and vehicle standards, roadworthiness and maintenance and includes all regulations made under such laws and related industry codes of industry practice, as applicable where the Services are being performed.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; or in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; or the occurrence of any event that has substantially the same effect to any of the above events.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world, including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets and know how, throughout the world for the full period of the rights and all renewals and extensions.
Invoice has the meaning provided to it in clause 4.4.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Modern Slavery Laws means the Modern Slavery Act 2018 (Cth) and divisions 270 and 271 of the Criminal Code Act 1995 (Cth).
Offer has the meaning provided to it in clause 3.1.
Order means any order or other request submitted by or for the Customer to the Company for it to supply to the Customer any Goods and/or Services, whether such order or request is written, verbal or implied in the circumstances and which may have been given in response to a Quote.
Personnel means any employee, agent, or contractor of the Company who assists the Company in the delivery of Goods and/or provision of Services under an Agreement.
PPSA has the meaning provided to it in clause 8.1.
PPSR has the meaning provided to it in clause 8.3.Premises means the premises of the Customer where, from time to time, Goods are delivered, and/or Services are provided, by the Personnel.
Price List means any price list or catalogue of the Company’s goods published and distributed by the Company in hard copy or electronically to its actual and prospective customers, as updated and replaced by the Company from time to time in accordance with clause 20.3.
Purchase Price has the meaning provided to it in clause 4.1.
Quotation or Quote means a quote, if any, provided by the Company to the Customer in respect of the Goods and/or Services.
Related Bodies Corporate has the meaning provided to it in section 50 of the Corporations Act 2001 (Cth).
Relevant Proportion has the meaning provided to it in clause 7.6.
Sale Proceeds has the meaning provided to it in clause 7.5.
Services means the services to be supplied by the Company to the Customer under an Agreement.
State means Victoria, Australia.
Storage Fee has the meaning provided to it in clause 5.9.
Tax or Taxes means any tax, levy, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, GST, consumption tax, value added tax or any other taxes, levies or charges), which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any such amounts.
Terms means these Terms and Conditions.
2.
Application
These Terms apply to and govern the supply by the Company of Goods and/or Services to the Customer which are to be provided under an Offer accepted by the Company in accordance with clause 3.1.
3.
Formation of Agreement
3.1 The Customer acknowledges and agrees that by submitting an Order the customer makes an offer to the Company for the Company to supply it with the Goods and/or Services on the terms of:
(a)
the Application for Credit (if any);
(b)
these Terms;
(c)
the order; and
(d)
the Quote (if any)
(Offer).
3.2 A Contract will be formed between the Company and the Customer in respect of each Offer upon the earlier of the Company:
(a) notifying the Customer, either verbally or in writing, that it accepts the Customer’s Offer;
(b) accepting, in full or part, payment from the Customer for any Goods or Services the subject of the Offer;
(c) making delivery of the Goods the subject of the Offer to the Customer; or
(d) performing the Services the subject of the Offer, each such contract being an “Agreement”.
3.3 An Agreement formed under clause 3.2 will comprise these Terms, any Application for Credit, the Order and any Quote.
3.4 The Company is not bound to accept any Offer and may not accept any Offer for any reason and in the sole discretion of the Company.
4. Price and payment
4.1 Unless otherwise agreed by the parties and subject to clause 4.2, the price the Customer must pay for the Goods and/or Services under each Agreement will be:
(a) the price for the Goods and/or Services specified in the Quote or, if there is no Quote, the Price List; and
(b) the Delivery Fee,
(Purchase Price).
4.2 The Company reserves the right to amend the Price List between the date of the Quote and the date the Offer is accepted. Such amendment to the Quote will be notified to the Customer in writing and if the Customer does not accept the amended Quote, the Customer will be entitled to cancel the affected Order without penalty. The Company will not amend the Purchase Price following formation of the relevant Agreement without the written agreement of the Customer.
4.3 Unless otherwise expressly specified by the Company or in these Terms, all prices stated are exclusive of Taxes and the Customer is solely responsible for the payment of all Taxes levied or payable in respect of the Goods and/or Services.
4.4 The Company may invoice the Customer for the Purchase Price at any time following formation of the relevant Agreement (Invoice).
4.5 Subject to clause 4.6, unless otherwise agreed in writing between the Customer and the Company the due date for payment by the Customer to the Company of the Purchase Price for the Goods and/or Services supplied pursuant to an Agreement (Due Date) is:
(a) if an Application for Credit has not been accepted by the Company or the Company has otherwise notified the Customer that they are a ‘COD’ customer, prior to the scheduled date of delivery for the Goods or performance of the Services; or
(b) if an Application for Credit has been accepted by the Company, 30 days from the end of the month in which the Invoice is dated.
4.6 If:
(a) an amount owed by the Customer has not been paid to the Company by the due date for that payment, and that amount remains outstanding at the time the Customer submits an Offer to the Company or an Agreement is formed; or
(b) the creditworthiness of the Customer is, in the Company’s reasonable opinion, unsatisfactory,
the Company may require payment of the Purchase Price in full prior to the Company delivering the relevant Goods or providing the Services. If the Customer does not agree to make payment of the Purchase Price in full as required by the Company under this clause 4.6, the Customer will be entitled to cancel the affected Order without penalty.
4.7 If the Customer fails to make any payment by the Due Date or is the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to the Company, the Company may, in its sole discretion, elect to:
(a) suspend any further deliveries to the Customer arising from any Agreement;
(b) cancel any Agreement in respect of any Goods or Services not yet supplied to the Customer in whole or in part by the Company;
(c) terminate any Agreement in accordance with clause 19.1;
(d) enter the property of the Customer (acting reasonably and upon prior notice) in order to repossess the Goods;
(e) charge the Customer interest (both before and after any judgement) on the unpaid amount at the Default Rate, which interest will accrue and be chargeable from the first day on which such amounts become overdue until the Company receives payment of all such amounts (including all interest) by way of cleared funds; (f) cancel any credit account facilities previously granted to the Customer by the Company; and
(g) cancel any trade discounts or rebates provided, or otherwise offered, to the Customer under any Agreement or other arrangement.
5. Delivery of Goods and provisions of Services
5.1 The Company will deliver the Goods and provide the Services to the Customer in the manner;
(a) agreed between the Company and the Customer in writing (including collection by the Customer); or
(b) if the parties have not agreed on a delivery method, as determined by the Company, acting reasonably.
5.2 The Company will use reasonable endeavours to deliver Goods and provide the Services between the hours of 9.00 am and 5.00pm on a Business Day at the place of delivery specified in the Quote or Order.
5.3 Without affecting any other right or remedy of the Company, in the event of the Customer refusing or failing to accept any delivery of the Goods (provided that delivery of the Goods is substantially in accordance with the relevant order), the Company shall be entitled to the Delivery Fee in respect of those Goods, and will treat the obligation to supply the remainder of the Goods the subject of the relevant Agreement (if any) as cancelled by the Customer.
5.4 Not used.
5.5 Subject always to clause 18, the Company will use its reasonable endeavours to deliver the Goods and provide the Services on any date specified or estimated by the Company or set out in an Order however any delivery times provided to the Customer are estimates only and the Company will not, to the maximum extent permitted by law be liable to the Customer (whether for loss or damage or otherwise) if there is a delay in delivery of the Goods or provision of the Services which is outside the Company’s reasonable control.
5.6 Without limiting clause 5.5, the company may deliver a portion of the Goods or Services and may invoice or otherwise charge the Customer for that portion. The Customer may not refuse to accept delivery of the Goods or to pay for the Goods or Services because only a portion of the quantity ordered was delivered and the Customer agrees that the Company will not be liable for any Loss that the Customer suffers as a result of any delay or cancellation.
5.7 There must be a representative of the Customer present at the delivery location at the delivery time specified or estimated by the Company for the Goods and delivery is deemed to have been made on the signing of a delivery note by the Customer’s representative. If no such Customer representative is present at the delivery location at the relevant delivery time, a redelivery fee may be charged by the Company.
5.8 The Customer acknowledges and agrees that:
(a) the Company will provide upon written notice proof of delivery or other similar documentation (whether at the time of delivery or after); and
(b) any proof of delivery or other similar documentation provided by the Company will be conclusive evidence of the delivery of the relevant Goods.
5.9 If the Customer either:
(a) notifies the Company that it requires the Company to store the Goods for a period of time; or
(b) does not collect the Goods or accept delivery of the Goods within 7 days of any scheduled date for collection or delivery of the Goods, then the Company may, at its discretion (acting reasonably) charge the Customer an amount which the Company considers to be reasonable in consideration for the Company storing the relevant Goods until such time as the Goods are collected by, or delivered to, the Customer (Storage Fee). The Storage Fee must be paid by the Customer to the Company within 30 days from the date on which the Company submits an invoice for the Storage Fees to the Customer.
6. Return of Goods
6.1 The terms of this clause 6 are subject to clause 9.
6.2 Subject always to any applicable provisions of the Australian Consumer Law, the Customer, may only return the Goods to the Company if;
(a) it believes the Goods are not supplied in accordance with the description, quality or quantity set out in the Agreement;
(b) the Goods have not been specifically ordered or manufactured by the Company for the Customer,
and it has provided the Company with a written notice of its claim.
6.3 Subject to any applicable provisions of the Australian Consumer Law, any written notice under clause 6.2 must;
(a) state the original invoice number and date for the Goods;
(b) be made within 7 days of the date of delivery or collection of the Goods; and
(c) be accompanied by payment for the Handling Fee.
6.4 Subject to any applicable provisions of the Australian Consumer Law, if the Company, at its sole discretion, determines that the Goods specified in a written notice under clause 6.2 do not meet the description, quality or quantity set out in the Agreement the Company may, at its sole discretion, supply replacement Goods to the Customer or provide the Customer with credit to be applied against future Orders.
6.5 Subject to any applicable provisions of the Australian Consumer Law, the Goods returned for credit must be packed in their original containers and if the Goods are soiled or damaged the Goods may be rejected by the Company or credited at a reduced amount in the Company’s sole discretion.
6.6 Subject to any applicable provisions in the Australian Consumer Law, the Customer will be responsible for the cost of having the Goods returned to the Company.
6.7 Not used.
7. Title and risk of Goods
7.1 Notwithstanding delivery of the Goods, title to, and property in, any Goods remains with the Company and will only pass to the Customer once all moneys owing by the Customer to the Company under the Agreement have been paid in full.
7.2 Risk in the Goods passes to the Customer immediately upon delivery in accordance with clause 5 and the Customer is responsible for arranging and taking out in its own name and its own cost, any insurance in respect of the Goods from the time risk passes to the Customer under this clause.
7.3 In the event that the Customer is required to return any Goods to the Company, risk in the Goods passes to the Company on confirmation of receipt of the Goods by the Company.
7.4 Until such time as full title, property and ownership of the Goods passes to the Customer in accordance with clause 7.1, and while the Goods remain in the Customer’s full control and possession:
(a) subject to clause 7.5, the Customer must hold the Goods as the Company’s fiduciary agent and bailee and must not sell, lease, dispose of or otherwise deal with the Goods in any way without the Company’s prior written consent or as otherwise permitted by these Terms;
(b) the Customer must insure the Goods for their full replacement value and must store the relevant Goods separately from any other goods and in a way that enables the Goods to be clearly identified as the Company’s and referrable to a particular Invoice;
(c) the Company may at any time after the Due Date for payment (acting reasonably and upon prior notice) enter the premises of the Customer or any third party where the Goods are stored during the hours of 9.00am to 5.00pm to inspect the Goods and;
(i) the Customer expressly authorises and grants the Company an express, irrevocable licence to enter the premises of the Customer or relevant third party to inspect the Goods and;
(ii) the Customer indemnifies the Company against any Loss that may be incurred or sustained by the Company, its employees or agents, as a result of entry of those premises where the Goods are stored save for in the event of willful negligence by the Company;
(d) the Company may at any time after the Due Date for payment require the Customer to deliver up all Goods to the Company and, if the Customer fails to deliver up those Goods immediately, the Company may (acting reasonably and upon prior notice) enter the premises of the Customer or any third party where the Goods are stored and repossess them and;
(i) the Customer expressly authorises and grants the Company an express irrevocable licence to enter the premises of the Customer or relevant third party to remove or arrange for the removal of the Goods; and
(ii) the Customer indemnifies the Company against any Loss that may be incurred or sustained by the Company, its employees or agents, as a result of the entry of those premises where the Goods are stored save for in the event of willful negligence by the Company; and
(e) the Customer must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Goods which remain the property of the Company. If the Customer does pledge or in any way charge by way of security, for any indebtedness, any of the Goods for which property and ownership has not passed to the Customer, the Customer must remove the pledge, charge or security interest immediately and all moneys owing by the Customer to the Company will (without prejudice to any other right or remedy of the Company) immediately become due and payable to the Company.
7.5 Notwithstanding that title to the Goods has not passed to the Customer under clause 7.1, the Customer may resell the Goods or any part thereof in the name of the Customer but only as agent for the Company and may deliver any such Goods to the buyer of those Goods but only in the ordinary course of its business and on terms which will not prejudice the Company’s ability to obtain the sale proceeds thereof and:
(a) any amount paid by the buyer of such Goods to the Customer (Sale Proceeds) must be held by the Customer on trust for the Company and banked in a separate bank account relating only to the sale proceeds of any Goods and shall be forwarded as soon as possible to the Company in satisfaction of any amount owed by the Customer in respect of the Goods; and
(b) if and when the full amount due to the Company in respect of the Goods has been received by the Company, any further Sale Proceeds may be retained by the Customer.
7.6 In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods manufactured or produced by the Customer or a third party, then, until all moneys owing by the Customer to the Company in respect of any Goods have been paid in full, the Customer must hold a proportion of any payment (Relevant Proportion) received by the Customer for such Goods on trust for the Company and the Customer acknowledges that the Relevant Proportion must be not less than the dollar value of the portion of the Goods incorporated or transformed.
7.7 If an Insolvency Event occurs in respect of the Customer then, without the need for notice or demand by the Company, the Customer acknowledges any sale or purported sale of the Goods will not be in the ordinary course of the Customer’s business and the proceeds of any Goods sold in such circumstances will, to the extent of any money owing by the Customer to the Company, be held on trust for the Company by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the Customer.
8. PPSA
8.1 Words and expressions used in this clause 8 which are not defined in these Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA.
8.2 Unless a Customer has paid for Goods in respect of an Agreement before they are delivered to the Customer, each Customer acknowledges that:
(a) the Agreement for the supply of Goods created under these Terms is a security agreement for the purposes of the PPSA, under which the Customer grants the Company a security interest in the Goods to secure all monies owing by the Customer to the Company from time to time;
(b) where the Company has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and
(c) the Company is not obliged to act in any way to dispose of or to retain any goods which have been seized by the Company or any person nominated by the Company under its rights under the PPSA.
8.3 Without limiting anything else in these Terms, the Customer consents to the Company effecting a registration on the Personal Property Securities Register (PPSR) in relation to any security interest created by or arising in connection with, or contemplated by, these Terms, including in relation to the Goods. The Customer agrees to promptly do all things necessary to ensure that any security interest created under these Terms is perfected and remains continuously perfected, the Company’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome.
8.4 The Customer must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by the Company for that purpose in relation to the Goods). Without limiting the foregoing, the Customer must:
(a) create and implement appropriate policies and systems to register a security interest in relation to the Goods where the Customer on sells the Goods to a third party; and
(b) where appropriate, take reasonable steps to identify security interests in relation to the Goods in the Customer’s favour and to perfect and protect them, with the highest priority reasonably available.
8.5 The Customer must indemnify, and on demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the PPSR, and for the enforcement of any rights arising out of any of the Company’s security interests.
8.6 The Customer must not change its name, address or contact details without providing prior written notice to the Company and must not register a financing change statement or a change demand without the Company’s prior written consent which will not be unreasonably withheld.
8.7 To the extent that the PPSA permits, the Customer waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA. 8.8 The Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if the Company has given prior written consent.
9. Warranties and liability
9.1 To the maximum extent permitted by law, the Company’s total aggregate liability to the Customer arising out of or in connection with an Agreement, whether in contract, tort (including negligence), statute or otherwise, is limited for each claim or series of connected claims which relate to any and all obligations pursuant to an Agreement, to the Purchase Price under that Agreement.
9.2 Nothing in these Terms excludes, restricts or modifies any condition, warranty, right, obligation or remedy implied or imposed by any statute or regulation which cannot lawfully be excluded, restricted or modified. These Terms must be read and construed subject to any such statutory provisions. If any such statutory provisions apply then, to the extent to which the Company is entitled to do so, the Company limits its liability pursuant to such provisions (at the Company’s option) to:
(a) in the case of the Goods, the replacement of the Goods or the supply of equivalent Goods or the payment of the cost of replacing the Goods or of acquiring equivalent Goods; and
(b) in the case of Services, the supplying of the Services, or the payment of the cost of having the Services supplied again.
9.3 To the maximum extent permitted by law, neither party will be liable to the other party in respect of any claim for indirect, incidental, special or consequential loss or damage or for loss of revenue, profits, goodwill, opportunity or data or interruption of business.
9.4 Nothing in these Terms operates to exclude or restrict either party’s liability to the other party for:
(a) death or personal injury resulting from negligence;
(b) fraud or fraudulent misrepresentation;
(c) damage to property; or
(d) anything else for which each party’s liability cannot be excluded or limited by law.
9.5 The parties will take all reasonable steps to mitigate any loss incurred by them under an Agreement.
9.6 To the full extent permitted by law, each party’s liability to the other in contract, tort (including negligence), statute or otherwise will be reduced to the extent, if any, to which the other contributed to the loss.
9.7 Without limiting any other provision in these Terms, the Company is not liable for any Loss the Customer suffers as a result of:
(a) improper use or consumption of the Goods; or
(b) misuse or neglect of the Goods or any other use or consumption of the Goods which is outside of the ordinary commercial application of the Goods or is otherwise inconsistent with the Company’s instructions in relation to the use or consumption of the Goods.
10. Intellectual Property
10.1 The Customer grants to the Company a non-exclusive, royalty free licence during the term of each Agreement to use, reproduce, modify, adapt and further develop all Intellectual Property Rights in those portions of the Customer Background Materials which are required to enable the Company to supply the Goods or perform the Services.
10.2 The Customer represents and warrants to the Company that:
(a) the Customer is the legal and beneficial owner of, or is entitled to use (or will on creation own or be entitled to use); and
(b) is entitled to licence to the Company in accordance with clause 10.1, the Intellectual Property Rights in the Customer Background Materials.
10.3 The parties acknowledge and agree that nothing in these Terms shall be construed as an implied or express transfer from the Company to the Customer of the ownership of, or title to, any of the Intellectual Property Rights in the Goods, material created as part of the Services or any other Intellectual Property Rights owned by or licensed to the Company and the Customer agrees that it must not infringe or use the Intellectual Property Rights of the Company which exist in the Goods or materials created as part of the Services for anything other than for the sole purpose of using the Goods.
10.4 For the avoidance of doubt, nothing in these Terms authorises the Customer to use:
(a) “Thermo King” in the Customer’s business or corporate name; or
(b) any registered “Thermo King” trademark.
11. Safety
11.1 From time to time in the course of assisting the Company to deliver the Goods and/or provide the Services, the Personnel will attend the Premises and may use tools, materials, machinery or equipment which are supplied by the Customer (Customer Supplied Equipment).
11.2 The Customer is responsible for conducting health and safety risk assessments of the Premises and for all aspects of health and safety at the Premises, including use of the Customer Supplied Equipment, and must:
(a) comply with H&S Laws including ensuring appropriate consultation with other duty holders under H&S Laws in relation to any work occurring at the Premises;
(b) do all things reasonably necessary to ensure that its agents, officers, employees and contractors comply with all H&S Laws and reasonable directions provided by the Customer about managing risks to health and safety;
(c) do all things reasonably necessary to assist the Company in complying with all H&S Laws;
(d) provide the Company with access to such documentation as may be reasonably necessary to establish the Customer’s compliance with H&S Laws and these Terms; and
(e) provide the Company with reasonable access to the Premises to allow the Company to monitor the Customer’s compliance with these Terms and H&S Laws.
11.3 Without limiting clause 11.2, the Customer must:
(a) eliminate risks to health and safety at the Premises and in respect of the use of the Customer Supplied Equipment so far as is reasonably practicable, and, if it is not reasonably practicable to eliminate risks to health and safety, reduce those risks as is reasonably practicable; and
(b) not knowingly do anything that might cause the Company to breach H&S Laws.
11.4 The Customer will verbally notify the Company immediately in the event of:
(a) becoming aware of any incident or injury that occurs involving Personnel and provide the Company with copies of any documentation that is created or produced as a result of or relating to such incident or injury, including but not limited to incident reports;
(b) any suspected or actual “modern slavery”, as that term is defined in Modern Slavery Laws, that occurs in its supply chain;
(c) any suspected or actual breaches of Heavy Vehicle National Laws that occurs in the course of the provision of the Services; and
(d) any notices issued by a regulatory authority about:
(i) the Customer Supplied Equipment;
(ii) systems of work and/or plant at the Premises relevant to the attendance of the Personnel at the Premises;
(ii) use of the Customer Supplied Equipment; or
(iv) an alleged breach of H&S Laws.
11.5 The Customer must at its own expense:
(a) clean the Customer Supplied Equipment and keep it in good order and condition at all times.
(b) supervise the use of any Customer Supplied Equipment by the Personnel;
(c) ensure the Personnel are provided with written procedures and instructions for safe systems of work and are given any necessary training to operate the Customer Supplied Equipment;
(d) if any fault or potential fault with the Customer Supplied Equipment is identified:
(i) ensure the Customer Supplied Equipment is not operated by the Personnel;
(ii) ensure the Customer Supplied Equipment is withdrawn from use until the fault or potential fault has been assessed and controlled/repaired so that there is no longer a safety hazard with the Customer Supplied Equipment; and
(iii) ensure all necessary steps are taken to prevent injury to any persons or damage to any property as a result of the fault or potential fault identified; and
(e) maintain and make available on request by the Company records of any safety hazards and safety incidents associated with the Customer Supplied Equipment and any maintenance, servicing or repair of the Customer Supplied Equipment.
11.6 The Customer indemnifies the Company for any claim including in relation to any injury, illness or death, arising out of or in connection with a breach by the Customer of the H&S Laws or this clause 11.
12. Indemnity
The Customer indemnifies the Company and holds the Company harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which the Company incurs as a direct or indirect result of:
(a) recovering any amounts the Customer owes to the Company (including any fees paid to a debt collector or similar); and
(b) any infringement or alleged infringement of Intellectual Property Rights owned by a third party in respect of any of the Customer Background Materials.
13. Notification of Claims
13.1 The Customer shall notify the Company immediately if it becomes aware of:
(a) any claim; or
(b) any death, serious injury or serious illness
In respect of, or caused by, the Goods or other goods of which the Goods are a component or mixed with and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.
13.2 If Goods are sold by the Customer to a third party for commercial use by that third party, the Customer must impose on the third party an obligation to notify the Customer immediately if the third party becomes aware of:
(a) any claim; or
(b) any death, serious injury or serious illness
in respect of the Goods or other goods of which the Goods are a component or mixed with and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.
13.3 The Customer must, and must impose on any third party to whom it sells the Goods, an obligation to:
(a) not, without the Company’s express written consent, make any representation to any Consumer regarding the purpose, performance or durability of the Products, which is in breach of the Australian Consumer Law;
(b) take all steps and do all things necessary to promptly pass on to the Company any claim made by a Consumer arising out of or in connection with the Australian Consumer Law and must, at the Customer’s expense, assist the Company to comply with its obligations under the Australian Consumer Law; and
(c) not agree to settle any claim made by a Consumer without the prior written consent of the Company.
14. No representations
The Customer acknowledges and agrees that it has not relied on any representations, inducements or statements made to it by the Company regarding the supply of the Goods or Services and it has satisfied itself that the Goods and Services are fit for the purpose it requires them for.
15. Confidentiality
15.1 The Parties
(a) may use Confidential Information solely for the purposes of the relevant Agreement;
(b) must keep confidential all Confidential Information; and
(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information of the other party must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by the Parties, or (ii) as required by law or securities exchange regulation.
15.2 The Parties must notify the other immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.
16. Privacy
The Customer acknowledges and agrees that personal information (as that term is defined in the Privacy Act 1988 (Cth)) regarding the Customer if the Customer is an individual, or the employees, contractors, officers and agents of the Customer if the Customer is an organisation, may be collected, held, used and disclosed by the Company for the purposes set out in the Company’s privacy policy (which privacy policy is available on the Company’s website or on request from the Company). The Customer consents, and where applicable will make all reasonable endeavours to have its employees, contractors, officers and agent consent, to the Company collecting, holding, using and disclosing any such personal information for all purposes specified in the Company’s privacy policy.
17. GST
All amounts payable by the Customer in connection with an Agreement do not include an amount for GST. If GST is payable on any supply made by the Company under these Terms, the Customer must pay to the Company, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Customer is required by these Terms to reimburse or indemnify the Company for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that the Company will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by the Company in respect of the reimbursement or payment. This clause does not merge on completion or termination of the relevant Agreement or contract. In this clause, words and expressions which are defined in the GST Act have the same meaning given to them by the GST Act.
18. Force Majeure
18.1 A party will not be liable for any failure to perform or delay in performing its obligations under an Agreement if that failure or delay is due to a Force Majeure Event.
18.2 If a force Majeure Event under clause 18.1 exceeds 20 Business Days, the affected party may immediately terminate the Agreement by written notice to the Customer.
19. Termination
19.1 Either party may terminate any and all Agreements and any account facility under an Application for Credit with immediate effect by written notice to the other party: If
(a) the other party is the subject of an Insolvency Event (subject to any provision of the Corporations Act 2001 or any related subordinate legislation that may prevent or restrict the exercise of a right of termination or other right under this contract);
(b) the other party has breached any material term of the relevant Agreement (including these Terms); or
(c) in accordance with clause 18.2.
19.2 On termination of an Agreement by the Company, the Customer must, at its cost and within 10 Business Days of the date of termination, return to the Company all Goods the subject of the Agreement (other than any Goods which have been paid for) and any displays and other promotional materials in relation to the Goods.
19.3 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
20. Acknowledgements and representations
20.1 If an Offer has been accepted by the Company, the Customer acknowledges that the Offer was accepted by the Company on the basis of, and in reliance upon, any information, specifications, data, representations, statements and documents provided by the Customer.
20.2 By making an Offer, the Customer warrants and represents to the Company that it: (a) has read and understood these Terms prior to making the Offer, and agrees to be bound by them in full;
(b) intends to use the Goods for its own personal use, and does not intend to acquire Goods for the purpose of resale; and
(c) will not use or supply the Goods outside Australia.
20.3 The Price List, Goods lists and other similar documents or catalogues do not constitute an offer by the Company to supply Goods appearing in those lists or catalogues or an offer by the Company to supply Goods at the prices set out in those lists or catalogues, save that Orders will be supplied at the price prevailing at the date the Order is placed. The Company’s Price Lists and catalogues may be changed by the Company at any time with prior notice in writing to the Customer. If the Customer does not agree to the Price List as varied, it must not make any further Orders for Goods or Services pursuant to these Terms. All Quotes and any prices are provided by the Company on an errors and omissions excepted basis and the Company reserves the right to correct any clerical errors or omissions whether in computation or otherwise in any Quote, Invoice or Price List.
21. Inconsistency
21.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 3.3, the following order of precedence shall apply to the extent of the inconsistency:
(a) the prices and quantity of Goods and/or Services set out in a Quote (if any);
(b) these Terms;
(c) the Application for Credit;
(d) any other terms of the Quote (if applicable); and
(f) without limiting clause 21.2, any terms in the Order.
21.2 These Terms shall prevail over any Customer terms and conditions, except to the extent specifically agreed by the Company in writing and any terms or conditions included in an Order or other document provided or issued by the Customer will only be binding on the Company if expressly agreed by the Company in writing.
22. Cancellation
22.1 Without limiting clause 4.7(b), the Company may cancel or suspend any Agreement effective immediately upon providing the Customer with written notice of cancellation or suspension where the Company believes (for any reason) that it will be unable to supply the relevant Goods or provide the Services to the Customer in accordance with the relevant Agreement, provided that if the Company cancels an Agreement under this clause 22.1 it will refund to the Customer any amounts already paid by the Customer for the Goods or Services subject to the cancellation and which are not provided to the Customer. The refund of any such amounts will be the Customer’s sole remedy against the Company in respect of any cancellation pursuant to this clause 22.1.
22.2 Neither an Agreement nor any Offer that has been accepted by the Company can be cancelled by the Customer except with the prior written consent of the Company, acting reasonably.
23. Miscellaneous
23.1 In these Terms:
(a) the singular includes the plural and vice versa;
(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
(e) headings are inserted for convenience and do not affect the interpretation of these Terms;
(f) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms; and
(g) all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
23.2 The Customer must maintain and keep current and complete records of the Goods which the Company has supplied to the Customer, including the Goods which are sold by the Customer to a third party and must, immediately upon written request from the Company, provide the Company with access to, or copies of, those records.
23.3 The Customer must not assign or otherwise deal with any of its rights or obligations under these Terms without the Company’s prior written consent, such consent not to be unreasonably withheld. The Company may assign, transfer, subcontract or otherwise deal with any of its rights or obligations under these Terms (including any right to be paid or chose in action) at any time by giving written notice to the Customer, in the following circumstances:
(a) to a Related Body Corporate, including as part of a restructure of the Company;
(b) as part of a business sale, including the sale of a substantial part of all business assets of the Company; or
(c) as otherwise required or desirable for the efficient performance of the Company’s obligations under these Terms.
23.4 For the purposes of clause 23.3, a Change in Control of the Customer shall be considered an assignment of the Customer’s rights or obligations under these Terms.
23.5 The Company may, to the extent permitted by law, vary these Terms from time to time by giving prior written notice of the variation to the Customer. If the Customer makes an Offer after receipt of the notice of variation, the Customer will be deemed to have accepted the variation. The Customer may not vary an Agreement (including any document forming part of the Agreement) unless the Company has expressly agreed to that variation in writing.
23.6 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any of these Terms must be in writing and is only effective to the extent set out in that written waiver.
23.7 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
23.8 Each Agreement constitutes the entire agreement between the Customer and the Company in respect of the supply of the Goods or Services and supersede all previous communications, representations, understandings or agreements.
23.9 These Terms are governed by the laws in force in the State, and the Customer and the Company submit to the non-exclusive jurisdiction of the courts of the State. Each party will comply with all laws applicable to the performance of their obligations under an Agreement, including, without limitation, the US Foreign Corrupt Practices Act, and any equivalent anti-bribery laws or regulations in the State.
23.10 The provisions of clauses 1, 7, 8, 9, 11.6, 12, 13, 15, 16, 19, 21 and 23 of these Terms survive the expiry or termination of an Agreement.
23.11 Each party must:
(a) do all acts necessary or desirable to give full effect to an Agreement; and
(b) refrain from doing anything which might prevent full effect being given to an Agreement.
23.12 The relationship between the parties is and will remain that of independent contractors, and nothing in an Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
23.13 Notices by a party must be delivered by hand, prepaid post, facsimile or email and sent to the address of the receiving party specified in the Application for Credit. Notices shall be deemed to have been received by hand upon delivery, by post within two (2) Business Days of sending, by facsimile upon receipt of a successful transmission report and by email one hour after the email (unless the sender knows that email has failed to SIGNED by the Customer in the presence of: