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 document, agreement(s) entered between the Company and the Supplier that results from the placing of the Purchase Order by the Company containing the specific conditions for the performance of obligations of the respective party;
1.3 Consequential Loss means loss and/or deferral of production, loss of profit, loss of use, loss of revenue, loss of business opportunity, loss of contract(s), business interruption losses, loss of goodwill, profit or anticipated profit (if any), whether direct or indirect and any other form of consequential or indirect loss whether or not foreseeable at the date of commencement of the Contract.
1.4 Equipment(s) shall mean all equipment, tools, products, materials and supplies and/or merchandise sold by the Supplier to the Company under the Standard Terms and Condition and the Contract;
1.5 Purchase Order shall mean the individual order to be issued by the Company and accepted by the Supplier in response to a quotation and accordance with these terms and conditions;
1.6 Price means the price for the whole of the Equipment and Services as specified under each applicable Purchase Order, as per the mutual agreement of the parties from time to time.
1.7 Services shall mean all services furnished by the Supplier, including services of employees and Equipment, goods, tools and/or other merchandise necessary to perform the Contract either at the Site or such other place as may be designated by the Company.
1.8 Site shall mean all classes of plants designated as such by the Company including but not limited to manufacturing plants and replacement plants including its machinery, vehicles, equipments, 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;
1.9 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 Supplier may agree upon any special terms and conditions apart from the Standard Terms and Condition in writing.
1.10 Supplier shall mean the selling entity identified in Contract to supply the Equipment and/or Services hereinafter defined and shall include the Supplier’s legal personal representatives, successors and assigns.
1.11 Working Day shall mean a weekday from Monday to Friday from [9.30] am to [5] pm, allowing a lunch break from [1.30] pm to [2.30] pm each of these days, unless otherwise specified in the Contract.
2. General
2.1 The Company and the Supplier shall collectively be referred to as "the Parties" and "Party" shall refer to any one of them.
2.2 The Standard Terms and Conditions shall apply to all Contracts for the procurement and supply of Equipment and Services by the Supplier to the Company where the Contracts have arisen from the Purchase Order.
2.3 The Standard Terms and Condition and Contract and shall prevail over any other documentation or communication from the Supplier.
2.4 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 Supplier and the Company in relation to the Purchase Order pursuant to the Standard Terms and Conditions and the Contract.
2.5 It is understood and agreed by the Supplier and the Company that all conditions have been read, and agreed.
2.6 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.
2.7 Any variation to these Standard Terms and Conditions shall be inapplicable unless agreed in writing by the Company.
2.8 The Standard Terms and Conditions shall not be amended except in writing by an authorised representative of the Company.
2.9 All Services and/or Equipment furnished to the Company will only be on these Standard Terms and Conditions, notwithstanding different or additional terms and conditions contained on any of Supplier’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 Supplier’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 Suppliers conditions.
2.10 The Parties agree that the Supplier is an independent contracting party and that the Agreement does not constitute a contract of agency, representation, employment or partnership between the Supplier and the Company.
3. Purchase order
3.1 The Purchase Order shall be system generated and placed by the Company electronically or by emailing a copy thereof to the Supplier, and may contain details of the Equipment's ordered (including the specification), details of the Services to be rendered (including scope of service and service levels) and confirmation of the Price.
3.2 In case of any discrepancy or ambiguity in the description or quantities in a Purchase Order, the Supplier shall immediately submit the matter to the Company for its decision before proceeding to execute the Purchase Order. In case such discrepancy or ambiguity in the description or quantities in a Purchase Order comes to the knowledge of the Company, it shall be decided on the basis of sole discretion of the Company.
3.3 Any amendment to the Purchase Order by the Supplier shall be subject to the Company’s prior written approval.
4. Price and Payment
4.1 The Price shall be the price specified in the Purchase Order and shall be paid by the Company to the Supplier in such manner and in the amount as indicated therein. Unless expressly stated to the contrary in the Purchase Order:
b) no additional charges of whatever nature shall be recoverable from the Company unless the Supplier has, prior to the execution of the Purchase Order, obtained the Company’s agreement in writing on such additional charges
4.2 The Price for the Purchase Order shall be paid by the Company online vide a NEFT/ IMPS/ credit card/ debit card to the account nominated by the Supplier or by cheque.
4.3 The amendment to the Price shall be subject to agreement and acceptance by the Company in writing.
4.4 The Company may demand, before payment is made, that the price computation be substantiated by the Supplier.
4.5 It is understood between the Parties that no invoice shall be binding on the Company unless supported by a valid Purchase Order issued by the Company.
4.6 The payment shall be made in accordance with the Purchase Order and terms and conditions stated therein by the Company to the Supplier.
5. Ownership and risk to the goods
5.1 Where the goods will be delivered by the Supplier the following conditions shall be applicable:
b) The following shall be necessary for the passing of risk to the Company in order to take place, the following shall be required:
i. in respect of the delivery of the goods and the completion of Services, the signature of an unendorsed delivery note by the Company; and
ii. in the case of the installation of the Equipment, a written certification by the Company of the completion of the installation.
5.2 Where the goods/ Equipment shall be collected by the Company, the ownership of and risk in and to the goods/ Equipment shall pass to the Company upon the physical collection thereof by the Company.
5.3 The Company shall have the right to inspect the goods/ Equipment and to measure progress on the execution of the Services at all reasonable times and to reject goods/ Equipment and/or Services that do not comply with the terms of the Standard Terms and Condition and the Contract.
5.4 It is understood between the Parties that any inspection, checking or approval by the Company shall not relieve the Supplier from any obligation under the Standard Terms and Condition and the Contract.
6. Representations by the supplier
6.1 The Supplier by way of the Standard Terms and Conditions warrants the following:
ii. the Supplier shall exercise that degree of skill, care and diligence which could reasonably and ordinarily be expected from a skilled and experienced operator complying with all applicable laws, engaged in the same or a similar type of undertaking.
6.2 The Supplier warrants that its premises, its production and packaging systems, processes, machinery, facilities, goods, Services, ingredients and materials comply with all relevant laws and industry standards and environmental laws.
6.3 Supplier shall not assign, charge, sub-contract or delegate its rights or obligations under the Contract, in whole or in part, without the prior written consent of the Company.
6.4 The Supplier warrants that goods supplied and the Services provided shall (unless otherwise stated in the Purchase Order) be new, merchantable, of agreed quality and description, in working order, fit for their intended purpose and free from contaminants, defects in materials, workmanship and design and shall be usable and durable for a reasonable period of time.
6.5 The Supplier warrants that the goods supplied are not
subject to any lien, pledge, mortgage, hypothecation, judicial attachment or other encumbrance and that the Supplier has the right to lawfully transfer ownership of the goods to the Company.
7. Supplier's general obligations
7.1 The Supplier shall perform the following observations:
ii. take all necessary steps to ensure that its staff do not engage in any disorderly conduct on or near the premises of the Company;
iii. refrain from any conduct which may be detrimental to the goodwill of the Company;
iv. supply the Company with any information or documentation relating to the goods and/or the Services which it requires within a reasonable time;
v. comply with all applicable laws including relevant statutes, ordinances, by-laws and regulations having any bearing on the Purchase Order;
vi. obtain all necessary licenses, permits and approvals that it requires to perform its obligations and shall ensure that its employees ensure the same;
vii. take all reasonable steps to ensure that goods and/or Services are delivered without any unreasonable delay acknowledging that time is of the essence in the performance of its obligations under these Standard Terms and Conditions and Contract.
7.2 Supplier 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 sub-supplier in performance of the Contract in the country or countries in which the Services are rendered or supplied, or any other country. Supplier 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 Supplier.
8. Obligations of the company
In order to enable the Company to perform its obligations under these Standard Terms and Conditions and the Contract between the Company and the Supplier, the Company shall observe the following conditions:
i. To co-operate with the Supplier during all times;
ii. To provide the Supplier with any information reasonably required by them;
iii. To keep the Supplier updated of the Company’s correct name, postal address and any phone, fax or e-mail information;
iv. To comply with such other requirements as agreed between the Supplier and the Company;
v. To comply with all other statutory requirements including the requirements of data protection and confidentiality.
9. Breach
9.1 In the event of either Party breaching any of its obligations under the Standard Terms and Conditions and the Contract, and such Party failing to remedy such breach within a period of seven (7) days of receipt of written notice from the aggrieved Party calling upon it to do so, the aggrieved Party shall be entitled without further notice to do the following:
i. terminate the Contract and/or cancel the Purchase Order and
ii. claim specific performance, in either event without prejudice to the aggrieved Party’s rights to claim damages or to enforce any other remedy to which it may be entitled whether in terms of the Contract or in law.
9.2 In the event of any legal proceedings against the Supplier, the Company shall be entitled to recover its legal costs.
10. Indemnity
The Supplier indemnifies and absolves the Company from any claims, damages, losses and any other liability (whether jointly or individually) arising from any cause whatsoever or based on any ground of liability (including liability without fault) to the extent that such liability is attributable, whether wholly or in part, to any defect or deficiency in any of the goods/Services supplied by the Supplier or is due to the Supplier’s failure to comply strictly with the provisions of these Standard Terms and Conditions and the Contract and/or applicable laws.
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 Supplier 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 Supplier or any third party for any indirect or consequential loss of profit or other economic loss under this Contract.
Provided that the Company shall be liable for the indirect or consequential loss of profit or other economic loss, caused as a result of any negligence, breach of contract, misrepresentation or otherwise by the Company.
11.4 The Company shall not be liable for the loss of goods as a part of its Services if such items are lost in transit.
12. Force Majeure
12.1 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 contamination's; 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.
12.2 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.
13. Termination
13.1 Company shall have the right to terminate the Contract, or any or all Purchase Orders in whole or in part, at such time or times as Company may consider necessary for any or all of the following reasons:
(b) in the event of any default on the part of the Seller; or
(c) if Seller or its parent company becomes bankrupt or insolvent, is unable to pay its debts as they fall due, goes into liquidation, has a receiving or administration order made against it or a petition or application made for same, makes an arrangement with its creditors, or carries on business under a receiver, trustee, administrator or supervisor for the benefit of its creditors, or if any act is done or event occurs which (under applicable laws) has an equivalent or similar effect to any of these acts or events.
13.2. If Company gives the Seller notice of termination of all or any part of the Purchase Order or Contract, such notice shall become effective on the date specified therein whereupon the Seller shall immediately: (a) cease performance of the Services or provision of Equipment as may be specified in the notice; (b) allow Company or its nominee full right of access to take over the performance of Services or provision of Equipment or the relevant part thereof; (c) assign to Company, or its nominee, to the extent desired by Company, all or the relevant parts of the rights, titles, liabilities, and subcontracts relating to the performance of Services or provision of Equipment which the Seller may have acquired or entered into.
13.3. In the event of termination under Clause 13.1(a) the Seller shall be entitled to payment as set out in the applicable Purchase Order for the part of the Services performed or Equipment provided in accordance with the Contract as agreed between the parties.
13.4. In the event of termination under Clause 13.1(b) or 13.1(c) the Seller shall be entitled to payment as set out in the applicable Purchase Order for the part of the Services performed or Equipment provided in accordance with the Contract. Any additional costs reasonably incurred by Company as a direct result of such termination shall be recoverable from the Seller.
14. Confidentiality
The Company 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.
15. Assignment
The Company 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. 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.
17. 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.
18. Governing law
18.1 The Standard Terms and Conditions shall be governed by and construed in accordance with the law of Western Australia.
18.2 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.
19. Notices
19.1 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.
19.2 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.
19.3 Nothing in these Terms and Conditions shall be construed as establishing or implying an employer/employee relationship between Company and any employees of the Supplier and/or its affiliates.
20. Miscellaneous
20.1 The Company and the Supplier 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.
20.2 The Supplier shall secure the permits and other authorizations at its own expense which may be required to perform the Services.
20.3 No one other than a party to the Standard Terms and Conditions and Contract shall have the right to enforce any of its terms.
20.4 The Supplier shall ensure that from time to time as requested by the Company, the Supplier shall certify by way of declaration to the Company that it has complied with its obligations, representations, and warranties of the Supplier as set forth in this Standard Terms and Conditions.