1. Interpretation
In this document, for all purposes, except as otherwise expressly provided or unless the context otherwise requires, the following words shall have the following meanings:
1.1 Company shall mean Royal Mechanical Group Pty. Ltd. including its successors, assignees or authorized representatives;
1.2 Contract shall mean the such document, agreement(s) entered between the Company and the Customer, if any, consequent to the Orders for Services and/or Equipment by the Customer containing the specific conditions for the performance of obligations of the respective party;
1.3 Customer shall mean any person, organization, firm, corporation or public authority including its successors, assignees or authorized representatives who avails the Services and/or Equipment from the Company;
1.4 Equipment(s) shall mean all equipment, tools, products, materials and supplies and/or merchandise sold by the Company and/or provided in connection with the Services by the Company under the Standard Terms and Condition and the Contract;
1.5 Holiday(s) shall mean any holiday which result in the cessation of work including (without limitation) bank or public holidays and festivals in the nature of Easter, December 25 (Christmas) and the January 1 (New year);
1.6 Order shall mean the order placed by the Customer for availing the Services provided by the Company including (without limitation) the scope of services availed, conditions of rates, charges and prices etc.;
1.7 Project shall mean a specific assignment according to the Order for providing Services to the Customer as per the terms of the Standard Terms and Conditions and Contract;
1.8 Services shall mean the services offered by the Company, including services of manufacturing, procurement, sales, rental, support, service, supply, installation and maintenance of Equipment and such other machinery at the Site and such other services in relation to and including but not limited to , lifting and mechanical aids, pumping equipment, valves and associated equipment, application engineering, consultancy, bolting and flange management and associated equipment, tools and/or other merchandise necessary to perform the Contract; and
1.9 Site shall mean all classes of plants designated as such by the Customer including but not limited to manufacturing plants and replacement plants including , its machinery, vehicles, Equipment, accessories, and other ancillary items; place of construction and laying of such Equipment; place of operations of hydraulic hoses supplied, procured etc. by the Company;
1.10 Standard Terms and Conditions shall mean the terms and conditions of services offered by the Company set out in this standard document.
Provided that the Company and the Customer may agree upon any special terms and conditions apart from the Standard Terms and Condition in writing.
1.11 Working Day shall mean a weekday from Monday to Friday from [8.00] am to [5] pm, allowing a lunch break from [12.30] pm to [1.30] pm each of these days, unless otherwise specified in the Contract.
2. General
2.1 The Standard Terms and Conditions shall apply to all Contracts for the supply of Services by the Company to the Customer and shall prevail over any other prior documentation or communication from the Customer or the Company, as the case may be.
2.2 No terms, conditions or warranties other than as specifically set forth in the Standard Terms and Conditions shall be deemed to be incorporated or to form part of the Contract or shall otherwise govern the relationship between the Customer and the Company in relation to the Order pursuant to the Standard Terms and Conditions and the Contract.
2.3 It is understood and agreed by the Customer that all conditions have been read, and agreed to without any dispute.
2.4 The Standard Terms and Conditions supersedes all prior negotiations, representations or agreements, whether written or oral unless and to the extent that they are expressly accepted in writing and signed by the Company.
2.5 Any variation to these Standard Terms and Conditions shall be inapplicable unless agreed in writing by the Company.
2.6 The Standard Terms and Conditions shall not be amended except in writing by an authorised representative of the Company.
2.7 All Services and/or Equipment furnished to Customer will only be on these Standard Terms and Conditions, notwithstanding different or additional terms and conditions contained on any of Customer’s forms, which are hereby objected to and which will not be binding on the Company. In the event of a conflict between these Standard Terms and Conditions and the respective provisions of any of Customer’s form of purchase orders, work or service orders, job or delivery tickets, or other similar forms, the provisions of these Standard Terms and Conditions shall prevail unless Company expressly agrees in writing to abide by the Customers conditions.
2.8 Any quotation issued by the Company shall be valid for a period of [15] days only from the date of issue or such other date as may be agreed in writing by the Company. Quotations issued by the Company do not constitute an offer and are subject to change at any time on the basis of further discussion between the Company and the Customer. All instructions, notices, agreements, authorizations, approvals and acknowledgements shall be in writing.
3. Responsibility of the company
3.1 The Company shall be entitled to unobstructed access and egress and, at the Site either in whole or in part thereof, as may be required for effective discharge of Services including for unloading and loading of Equipment; conducting construction activities; manufacture activities; installation and maintenance activities etc. for the Services;
3.2 The personnel employed by the Company for the performance of the Services shall be deemed to be under the direction and control of the Company.
4. Price and payment
4.1 The price for the Services of the Company shall be paid in accordance to the Contract entered. The payment of the price shall be made by the Customer online vide a NEFT/ IMPS/ credit card/ debit card or by cheque.
4.2 The payment shall be made by the Customer to the Company within thirty (30) days from the date of the Invoice. It is understood by the parties that time for payment shall be of the essence under the Standard Terms and Conditions and the Contract.
4.3 The payment for the Services shall be made in accordance with the Order. The Customer is not permitted to withhold or defer payment on account of any claim, counter-claim or set-off.
4.4 The Company reserves the right to make changes to the price for the Services upon giving written notice in case of an increase in the price and costs of Equipment, labour and overhead expenses that were not taken account initially in any estimate, quotation or Order at any time before completion of the Contract.
4.5 In case of any variation to the scope of Services and whereby an additional work is undertaken by the Company, the Company reserves the right to effect an increase in the price agreed between the parties. Any variation by the Customer in the Services or specification of the Equipment following any instruction by the Customer shall give the right to the Company to affect change in the price.
5. Delivery of Equipments
5.1 Equipment required to be delivered by the Company shall be delivered at the port of shipment. Title to the Equipment shall pass to the Customer upon receipt of payment in cleared funds by the Company of amounts due in respect of the Order. For the avoidance of doubt, any such transfer of title in the Equipment shall not imply transfer of ownership of any intellectual property therein.
5.2 Company may deliver the Equipment in instalments. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract. Delivery dates are intended to be an estimate and subject to Force Majeure events and time and date for delivery shall not be made of the essence by notice or otherwise and are dependent on prompt receipt by the Company of all information and assistance required or requested by the Company for supply of Equipment.
5.3 In the event that the equipment is not collected by Customer on actual date of delivery, Company may (at its discretion) place Equipment in storage at the sole cost, expense and risk of the Customer. Risk for loss or damage shall pass to the Customer upon delivery to the Customer which shall be deemed to the arrival of the Equipment at the port of shipment.
5.4 The quantity of any consignment of Equipment as recorded by Company on dispatch shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide evidence proving the contrary. Company shall not be liable for non-delivery of whole or part of Equipment unless Customer gives written notice to the Company of the non delivery or short delivery, as the case may be, within forty-eight (48) hours of the date and time when the Equipment would in the ordinary course of events should have been received or have been short received, as the case may be. Any liability of the Company for non-delivery of the Equipment shall be limited to, at Company sole discretion, either replacing the Equipment or issuing a credit note against any invoice raised for Equipment.
6. Scope of services
6.1 The Project(s) is to be performed on a non-exclusive, basis, as requested by the Customer in accordance with the terms of this Standard Terms and Conditions and the Contract.
6.2 The Company shall provide the Services under the Project during the Working Days only. The Company shall not provide its Services on the days of Holiday unless the nature of Services is such that it requires work without any break which shall be at discretion of the Company.
6.3 The Company represents that the personnel engaged in the Services has the requisite knowledge, ability, skills and resources to provide such services in accordance with the terms and requirements of this Standard Terms and Conditions and the Contract.
6.4 The Company agrees to provide engineering and technical Services on an Order basis as requested by the Customer in accordance with the terms of this Standard terms and Conditions and the Contract. The Services to be provided are expected to be those associated with mechanical engineering in relation with the Order. Depending on the nature of the Services and Order, the Services of the Company may include but will not necessarily be limited to:
ii) application engineering, consultancy, bolting and flange management and associated Equipment rental employees and Equipment, tools and/or other merchandise necessary to perform the Contract;
iii) engineering, design or conceptual design, including the preparation, or supervising and controlling the preparation, of drawings and specifications, for a specific Order to renovate, alter, repair, or maintain the hydraulic hoses at the Customer’s facilities, associated infrastructure Equipment or system, or a portion thereof;
iv) engineering design coordination or conceptual design coordination to include the review and coordination of the personnel working with or under the direction of the Company for a specific Order with regard for the ability of each professional involved;
v) recommending and overseeing construction or maintenance of the Services under the Order project delivery systems appropriate to the nature of the Project;
vi) observing the renovation, alteration, repair or maintenance construction or installation work to evaluate conformance with engineering plans and specifications;
vii) services associated with the assembly, review and acceptance of operating or maintenance manuals of hydraulics hovers;
viii) consultation, investigation, evaluation, analysis, planning, engineering for the Project, providing expert opinions, and providing technical support for construction, manufacture or other engineering use as per the Services;
ix) any other service necessary for providing the Services under this Standard Terms and Conditions and the Contract generally described above.
6.5 The specific scope of work under the Order for each Project shall be determined in advance and in writing under the Contract.
7. Obligations of the customer
7.1 In order to enable the Company to perform its obligations under these Standard Terms and Conditions and the Contract between the Company and the Customer, the Customer shall inter-alia observe the following conditions:
(ii) To provide access to the Site at all times during the performance of Services;
(iii) To perform such obligation as is required in effective discharge and completion of Services by the Company
(iv) To provide the Company with any information reasonably required by them;
(v) To keep the Company updated of the Customer’s correct name, postal address and any phone, fax or e-mail information;
(vi) To comply with such other requirements as agreed between the Customer and the Company;
(vii) To comply with all other statutory requirements including the requirements of data protection and confidentiality.
7.2 Customer shall, and shall ensure that its subcontractors and sub-suppliers report, file and pay any and all taxes, duties and levies in respect of income, corporation, revenue or similar taxes, howsoever described, and all fines, penalties and interest thereon duly assessed on the income, profits and gains accruing to Customer or any subcontractor or subsupplier in performance of the Contract in the country or countries in which the services are rendered or supplied, or any other country. Customer shall defend, indemnify and hold harmless Company against any and all Claims relating to taxation howsoever arising in connection with said income, profits and gains of Customer.
8. Obligations of the company
8.1 The Company shall perform the Services with reasonable skill and care and provide a reasonable standard of Services in accordance to the general practices of business.
8.2 The Company can engage a sub-contractor or any agency in its sole discretion or delegate its works to any other agency in its sole discretion provided Company shall be responsible for the completion and sufficiency of Services required to be rendered.
8.3 The Company agrees that all the Equipment(s) used shall conform to the specification in the Order. Provided that the Company gives no undertaking that the Equipment(s) offered as a part of the Services is fit for the Project. It is understood that the Customer, having greater knowledge of its own requirements shall rely on its own skill and understanding to evaluate the suitability of the Equipment(s) for the purpose of the Services.
9. Safety
9.1 The Company shall be responsible for the conditions of the Site, including safety of personnel of the Company during the performance of the Services. Customer shall provide all reasonable assistance and maintain adequate infrastructure at the Site to ensure all possible measures including statutory and non statutory requirements to ensure safety of all personnel employed at the Site. It shall be responsibility of the Customer to mitigate all occupational hazards to ensure safety and security of personnel of the Company.
9.2 The Company shall instruct all personnel working in potentially hazardous work areas as to potential dangers and shall provide such necessary safety Equipment and instruction as is necessary to prevent injury to personnel and damage to the Site.
9.3 All work and materials shall be in strict accordance with all applicable state, federal and local laws, rules, regulations, and codes.
10. Insurance
10.1 The Customer shall maintain levels of insurance sufficient for the performance of the Standard Terms and Conditions and the Contract to cover their respective liabilities and obligations.
10.2 The Customer shall provide proof of the relevant insurance coverage, whenever requested by the Company.
11. Limitation of liability
11.1 Nothing in these Standard Terms and Conditions shall make the Company liable for the acts/ omissions falling outside the scope of these Standard Terms and Conditions.
11.2 The Company shall not be liable for any direct/ indirect loss or damage suffered by the Customer caused, as a result of their negligence, breach of contract or otherwise.
11.3 The Company shall not be liable under any circumstances to the Customer or any third party for any indirect or consequential loss of profit or other economic loss under this Contract.
11.4 The Company shall not be liable for the loss of items as a part of its Services if such items are lost in transit.
12. Cancellation of the order
12.1 Subject to the Standard Terms and Conditions, the Customer is not permitted to cancel the Order placed under any circumstances whatsoever. The Order if cancelled, shall entitle the Company to retain the price paid by the Customer and the same shall not be refunded for any reason whatsoever. Further, Company shall be entitled to payment of damages, direct or indirect consequential losses, if any.
12.2 Any cancellation of the Order may result in a cancellation charge equal to (a) 20% of standard Equipment/Services; and (b) 100% of the full Contract price for non-standard or special Equipment/Services. Cancellation charges for accessories and components sourced from third parties will be charged at full price. Company shall, at its sole discretion, adjust the price and delivery dates or make such other amendments as may be required as a result of any change order agreed to be issued by the Customer and Company.
13. Force Majeure
13.1 Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of god; natural disasters; any act or omission of any governmental authority which directly prevents or causes delay in consummation of Services contemplated herein; acts or restraints of governments or public authorities; war; revolution; acts of terrorism; riot or civil commotion; radioactive contaminations; ionizing radiations; strikes; lock outs or other industrial action; failure of supplies of power; fuel; transport Equipment or other goods or services; accidents; war; fire; epidemics, pandemics; contagious diseases; breakdown of plant or machinery or shortage or unavailability of materials from a natural source of supply; travel warnings and; any event or circumstances of a nature analogous to any of the foregoing.
13.2 In case of happening of the force majeure event, the affected party shall be entitled to a reasonable extension of its obligations.
Provided the affected party gives a notice within fifteen (15) days of the occurrence of the force majeure event or the date of knowledge thereof.
14. Termination
14.1 Company may terminate the Contract:
(a) immediately upon notice to the Customer if the Customer is delayed for more than 30 days in the payment of any sum due to Company except for Force Majeure;
(b) immediately upon notice to the Customer if it is in breach of any obligation under the Contract and the Customer has failed to remedy such breach within [14] days of written notice to the Customer requiring the breach to be remedied;
(c) immediately upon notice to the Customer if there is any change in the ownership, management or control of the Customer;
(d) immediately upon notice to the Customer if the Customer ceases or threatens to cease to carry on business or
(e) Company has reasonable cause to believe that the Customer is unable to pay its debts when due;
(f) without notice to the Customer if the Customer becomes insolvent or bankrupt, enters into liquidation, or a receiver, administrator, administrative receiver, manager, trustee or similar officer is appointed in relation to it or over any of its assets or any action is taken or threatened by or against it analogous to the foregoing in any jurisdiction; or
(g) immediately upon notice to the Customer if a case of Force Majeure continues for 90 days or more.
14.2. Where Company terminates any Contract under this Clause 14, the Customer shall within seven (7) days pay to Company:
(a) all amounts invoiced by Company under the Contract which remain unpaid at the date of termination;
(b) a fair and reasonable price in respect of work completed or in progress but not invoiced at the date of termination;
(c) all costs (including without limitation a sum in respect of overheads and the legal costs) incurred by Company connected with termination;
(d) all suppliers’ and sub-contractors’ termination charges.
14.3 Termination of any Contract by the Company shall be without liability or obligation of any kind on the part of Company. Such termination shall not affect the rights of Company accrued prior to the date of termination.
15. Confidentility
The Customer agrees to keep the contents, terms and conditions of this Standard Terms and Conditions and Contract confidential and not disclose them except to any third party.
16. Company's property and copyright
The contents of the Company’s website shall not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means without the prior express written permission of the Company.
16.2 The Standard Terms and Conditions shall remain the copyright of the Company and shall only be used by the Company.
16.3 The Customer or a third party may not at any time, without prior written permission of the Company, make copies or reproductions (in whatever form) of the Standard Terms and Conditions.
17. Assignment
The Customer is not permitted to assign, charge, sub-contract or delegate its rights or obligations under the Standard Terms and Conditions and the Contract, in whole or in part, without the prior written consent of the Company.
18. Severance
If any term or provision of these Standard Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions shall continue to remain in full force and effect as if these Standard Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision deleted.
19. Waiver
Either party’s failure to enforce any provision of this Standard Terms and Conditions shall not be construed to be a waiver of such provision or the right of such party to enforce each and every such provision.
20. Governing law
The Standard Terms and Conditions shall be governed by and construed in accordance with the law of Western Australia, Australia.
20.2 The parties to the Standard Terms and Conditions shall submit to the exclusive jurisdiction of the courts of Western Australia in case of any future dispute.
21. Notices
Any notice to be given under, or in connection with the matters contemplated by, these Standard Terms and Conditions shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally or sending it by facsimile, e-mail or registered post to the address and for the attention of the person stated in the Contract (or as otherwise notified by that party hereunder). Any such notice shall be deemed to have been received:
(b) in the case of registered post, forty-eight (48) hours from the date of posting;
(c) in the case of fax, at the time of transmission; and
(d) in the case of electronic mail, forty-eight (48) hours after the time of sending.
21.2 No failure or delay by any party in exercising any right, power or privilege under any Contract shall operate as a waiver nor shall any single or partial exercise preclude any further exercise of any right, power or privilege under any Contract or otherwise.
21.3 Nothing in these Terms and Conditions shall be construed as establishing or implying an employer/employee relationship between Company and any employees of the Customer and/or its affiliates.
22. Miscellaneous
22.1 The Company and the Customer agree that that any special conditions set out in the Contract will take precedence over the general terms and conditions set out in these Standard Terms and Conditions.
22.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions in relation to the Project is for the sole purpose of giving an approximate idea of the Services being provided to the Customer.
22.3 The Customer shall secure the permits and other authorizations at its own expense which may be required for the Company to perform the Services.
22.4 The Customer agrees to indemnify the Company against any costs, claims, actions, demands or expenses incurred or suffered in connection with the Customer’s failure to obtain any permits or authorizations required to perform the Services.
22.5 Nothing in these Standard Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties or as the agent of the other.
22.6 No one other than a party to the Standard Terms and Conditions and Contract shall have the right to enforce any of its terms.
22.7 The Customer shall ensure that from time to time as requested by the Company, the Customer shall certify by way of declaration to the Company that it has complied with its obligations, representations, and warranties of Customer as set forth in this Standard Terms and Conditions.