Terms and Conditions
“Customer” means the entity which HA has agreed to supply goods and services, identified as such either on the reverse of this document or in any attached or associated terms and conditions. “Customer’s Property” means property (whether owned by the Customer or a third party) delivered to or made available to HA by the Customer for the performance by HA of Services. “HA” means one or more of Heavy Automatics Pty Ltd (ACN 062 894 277), Heavy Automatics (Qld) Pty Ltd (ACN 106 833 452), Heavy Automatics (NSW) Pty Ltd (ACN 096 597 938), Heavy Automatics (Vic) Pty Ltd (ACN 100 520 401), HA Parts Pty Ltd (ACN 117 732 822) and Heavy Hydraulics Pty Ltd (ACN 612 770 448) which have agreed to provide the Customer with Goods or Services. “Goods” and “Services” respectively mean all goods (including goods supplied in connection with the provision of Services) and all services which one or more HA entity agrees to provide to the Customer.
2. Precedence of terms and conditions
Unless otherwise expressly agreed by HA in writing, every supply of Goods and Services to the Customer by HA is subject to these terms and conditions and to the matters specified in writing by HA in any attached or associated documents. No additions or alterations shall be of any effect unless expressly agreed by HA in writing. In particular (but without limitation), terms and conditions submitted by a Customer as part of or in connection with any purchase order will be of no effect unless expressly agreed to in writing by HA.
3. Payment Terms & Price
Unless otherwise expressly agreed by HA in writing, payment must be received by HA no later than the last working day of the month following the month in which the Goods or Services are invoiced by HA. All prices quoted are exclusive of GST which shall be an additional amount payable by the Customer if applicable. HA shall be entitled to vary the price of any Goods or Services at any time prior to delivery or completion if the cost to HA of performing its obligations is increased or reduced by any new or amended legislation, regulation, order, directive, by-law, licence or approval or by reason of fluctuations in currency value, changes in the amount charged to HA by its suppliers or by any cause beyond the direct control of HA. No such reasonable variation shall entitle the Customer to cancel an order. The time specified by HA for payment is of the essence. If the Customer fails to make any payment by a due date, HA shall (without limiting any other remedy) be entitled:
3.1 to be paid interest by the Customer at a rate two per centum per annum higher than the rate charged from time to time by HA’s bank on an overdraft in excess of $100,000, such interest to be charged daily, to be compounded every calendar month upon the amount then owing and to be payable on demand (a letter from HA’s bank specifying the interest rates applicable shall be conclusive proof of such rates); and
3.2 to suspend the performance and delivery of all Services and Goods until all outstanding payments are made and to adjust the amount payable by the Customer to compensate HA for any extra expense or loss thereby incurred including (without limitation) all reasonably incurred legal, collection agency and other costs
Where a price quoted by HA for Goods or Services is specified to be an estimate, the Customer shall pay HA the amount claimed by HA upon completion, which amount may vary from the estimated amount and which amount shall be based upon the actual work done and materials supplied by or on behalf of HA. If HA has agreed to provide Services, the Customer also authorises any additional services and tests as may be reasonably necessary in connection with the Services and agrees to pay HA’s reasonable charges for that additional work. Where the Customer has requested HA to prepare a quotation for the provision of Services which requires HA to perform disassembly of the Customer’s Property and the Customer does not accept the quotation, the Customer shall be responsible for all labour and associated costs and charges incurred by HA in preparing the quotation. The Customer’s Property will not be re-assembled following rejection of a quotation unless the Customer requests HA to do so and agrees to pay HA’s charges for such re-assembly.
5. Time for performance
Dates for delivery of Goods or performance of Services are estimates only. HA will use reasonable endeavours to meet any estimated date but HA shall not be liable for any delay howsoever arising.
6. Description and specifications may vary
Specifications and descriptions including (without limitation) photographs, drawings, details relating to functionality, performance, dimensions and weight are approximate only and HA shall not be liable for any omission, error or inaccuracy. The Customer acknowledges that it has relied entirely on its own skill and judgment to select appropriate Goods or Services and that the Customer has not relied on any representations made by or on behalf of HA or HA’s suppliers. HA reserves the right to make any changes to the Goods found necessary due to unavailability of Goods or which HA reasonably considers would improve the Goods. The Customer acknowledges that HA may subcontract the performance of Services.
7. Delivery and Acceptance
7.1 Delivery of Goods and return of Customer’s Property shall be at HA’s premises unless otherwise agreed. Upon request by the Customer, HA may agree to dispatch Goods or Customer’s Property to the Customer carriage paid in which case the Goods or Customer’s Property shall be at the Customer’s risk from the time of dispatch and HA may invoice the Customer for all costs thereby incurred.
7.2 The Customer must immediately notify HA in writing if Goods or Customer’s Property is not received within seven days of receipt by the Customer of HA’s delivery advice or invoice. Unless the Customer notifies HA of any shortage within 5 days of receipt by the Customer of the Goods or Customer’s Property, complete delivery will be deemed to have occurred.
7.3 If, as a result of any action or inaction of the Customer, Goods or Customer’s Property is not collected or dispatched from HA’s premises within 7 days after HA notifies the Customer that the Goods or Customer’s Property is ready, HA shall then be entitled to full payment notwithstanding any other payment terms agreed and HA shall further be entitled to charge the Customer for storage of the Goods or Customer’s Property until such time as the Goods are delivered to the Customer.
7.4 The Customer must promptly inspect Goods supplied or Customer’s Property upon delivery to the Customer. Subject to the warranty rights specified in clause 11, the Customer will be deemed to accept that Services have been satisfactorily completed and Goods have been satisfactorily supplied unless the Customer notifies HA in writing of any deficiencies within 7 days after delivery to the Customer.
7.5 Acceptance by HA of the Customer’s Property for repair or other treatment in some States may be subject to legislation which confers on HA a right to sell the Customer’s Property exercisable in certain circumstances after a minimum period after the date on which the Customer’s Property is ready for re-delivery. The Customer’s address for service of notices pursuant to any applicable legislation is as specified by the Customer at the time of placing an order. The powers conferred on HA by applicable legislation are in addition to any other rights HA may have.
7.6 If Customer’s Property is left with HA in States or Territories which are not subject to relevant legislation governing the disposal of uncollected property, the Customer grants a lien over such Customer’s Property to HA for the value of all Goods and Services provided by HA. If the Customer fails or refuses to pay the amount due to HA, the Customer authorises HA to sell the Customer’s Property by public auction after an interval of not less than 2 months from the date the Customer’s Property is ready for re-delivery or collection and the Customer authorises HA to satisfy all amounts due to HA by the Customer and the costs of storage, transport, auction and sale from the proceeds of sale.
8. Responsibility for Customer’s Property
The Customer’s Property shall be at the Customer’s risk while in HA’s possession for the provision of Services and HA shall not be liable for any loss or damage to the Customer’s Property (including contents and attachments) whether arising from breach of contract, negligence or otherwise howsoever. Where the Customer’s Property forms part of or is attached to a vehicle, the vehicle may be driven on public roads at the Customer’s risk for the purpose of testing or otherwise in connection with the provision of the Services. The Customer warrants that (a) it has all necessary authority to deliver the Customer’s Property to HA and to authorise the Services; and (b) the Customer’s Property is registered, insured, roadworthy and otherwise suitable for use on public roads.
9. Work performed away from HA’s premises
If HA agrees to provide Services at the Customer’s or a third party’s premises, the Customer must ensure that (a) HA is given access to the premises as required in order to provide the Services (b) HA is permitted access to power, water, toilets and other amenities as reasonably required by HA and at no cost to HA; and (c) the premises and any vehicle or other items to be worked on are located in a safe and suitable work location and in accordance with any reasonable requirements of HA.
10. Returns, cancellations or suspension of orders
Other than where the Customer has a statutory right to rescind an order which right cannot be excluded by agreement, the Customer is not entitled to cancel or suspend any order unless HA agrees in writing and subject to any conditions imposed by HA with respect to compensation of costs and lost profit or otherwise. HA may in its discretion agree to accept the return of Goods, subject to the following conditions – (a) the Customer must request HA to accept the return within 30 days of invoice by written notice accurately identifying the Goods by invoice number and date; (b) the Goods must be promptly returned to HA at the Customer’s expense in original unmarked condition and in the same undamaged packing material and with all documentation such as instruction sheets (Goods which are rejected by HA will be reshipped to the Customer at the Customer’s risk and expense); (c) the returned Goods shall be at the Customer’s risk until received by HA; and (d) the credit granted by HA to the Customer for the return of the goods shall be equivalent to the amount paid or payable for the Goods by the Customer less 10% for handling.
11. Warranty & liability
11.1 In some circumstances, the law implies terms and conditions, obligations or remedies which cannot be excluded by agreement (“non-excludable rights”). The following provisions do not purport to exclude any non-excludable right.
11.2 Subject to any applicable non-excludable rights:
11.2.1 where Goods manufactured by a third party are supplied by HA, those Goods are subject only to the then applicable manufacturer’s written warranty, details of which have been provided or will be made available to the Customer upon request
11.2.2 where Services are supplied by HA which comprise the supply of labour only, the Services are warranted to be free from defects in workmanship under normal us and service for a period of 6 months or 1,000 operating hours from the date of completion of the Services
11.2.3 in the case of Services which comprise the supply of both labour and Goods (a) the Goods are subject to the warranties (if any) referred to in clause 2.1; and (b) the labour component is subject to the warranties (if any) referred to in clause 11.2.2.
11.2.4 in the case of Services performed on HA’s behalf by a sub-contractor, those Services are subject only to the then applicable subcontractor’s warranty, details of which have been provided or will be made available to the Customer upon request.
11.2.5 all other warranties with respect to Goods and Services are hereby excluded.
11.3 Each warranty is conditional upon:
11.3.1 use, care and maintenance of Goods or relevant Customer’s Property in accordance with HA and manufacturer’s recommendations;
11.3.2 the Customer providing HA with written notice of any claim pursuant to the warranty within the warranty period;
11.3.3 the delivery at the Customer’s expense of the components to HA at an address nominated by HA; and
11.3.4 HA being satisfied that the Goods or Services supplied by HA are defective.
11.4 Where HA is liable to the Customer (notwithstanding the other provisions of this clause) whether pursuant to non-excludable rights or for breach of contract, negligence or otherwise:
11.4.1 in the case of a liability of HA arising in connection with the supply of Goods, the liability of HA shall, at HA’s option, be limited to the replacement of the Goods, the supply of equivalent goods, the repair of the Goods, payment of the cost of replacing the Goods, payment of the cost of acquiring equivalent goods or payment of the cost of repairing the Goods; and
11.4.2 in the case of a liability of HA arising in connection with the provision of Services, the liability of HA shall, at HA’s option, be limited to the supply of the Services again or payment of the cost of supplying the Services again.
11.5 In no circumstances will HA be liable to the Customer for loss of use, loss of profit, loss of anticipated savings, loss on resale, delay costs or for any consequential or indirect loss or punitive or exemplary damages of any kind.
11.6 The Customer must indemnify HA and its officers, employees and agents (‘those indemnified”) and keep them indemnified against any loss, liability, damages, claim, demand or expense (including legal fees on a full indemnity basis) which any of those indemnified may suffer as a result of any negligent act or omission or any breach of these terms and conditions by the Customer or its officers, employees or agents.
12. Dispute Resolution
12.1 If any claim or dispute arises between HA and the Customer as to their respective rights and obligations, before resorting to any formal dispute resolution mechanisms such claim or dispute shall be referred to senior representatives of each of the parties who have authority to resolve the dispute..
12.2 If the dispute cannot be resolved by the senior representatives within 14 days after the dispute is referred to them, then prior to referring the matter to litigation or other formal dispute resolution procedures, the parties shall seek to agree an appropriate dispute resolution procedure for resolving the dispute including, without limitation, the reference of the matters in dispute to mediation or expert determination
12.3 If a dispute has not been resolved by negotiation and if the parties are unable to agree on an appropriate method of dispute resolution within a further 14 days, then:
12.3.1 if, in the opinion of either party, the dispute involves an amount of less than $200,000 then the dispute must only be resolved by expert determination in accordance with this clause. Either party may refer the dispute to expert determination. Neither party may commence any litigation with respect to that dispute except to enforce an expert determination after it is delivered.
12.3.2 if the dispute involves an amount in excess of $200,000, then either party may seek to resolve the dispute by litigation.
12.4 For the purposes of this clause, where more than one matter is in dispute, the amount involved in each matter in dispute must be separately assessed and the amounts shall not be aggregated.
12.5 Nothing in this clause prevents a party from commencing and prosecuting any application for urgent injunctive or other interlocutory relief
12.6 Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.
12.7 If any dispute arises which is required to be submitted to expert determination or which the parties agree should be resolved by expert determination, the parties shall agree an appropriate person to determine the dispute or, in default of agreement being reached within 5 business days, then either party may request the President or like officer (or their delegate) of The Institute of Arbitrators and Mediators (SA Chapter) to nominate a person to determine the dispute (the “Expert”).
12.8 The Expert shall determine the matters required to be determined under this Agreement and any other matters referred to the Expert pursuant to this Agreement or by agreement between the parties. Each party shall be entitled to make submissions to the Expert. The Expert shall determine the matters referred to the Expert expeditiously and each party must do all things reasonable necessary to facilitate the expert determination. In making the expert determination, the Expert shall be deemed to be acting as an expert and not as an arbitrator. The determinations of the Expert shall be binding on the parties. The costs of the Expert shall be borne equally by the parties.
13. Property in Goods
13.1 HA remains the owner of all Goods delivered to the Customer until payment in full of all amounts due and payable by the Customer to HA, whether for the Goods or otherwise. Without limiting the foregoing, where HA has agreed to provide Goods to the Customer in instalments, property shall not pass in any instalment of the Goods until payment has been made to HA for all instalments of the Goods. Until all payments have been made to HA, the Customer holds the Goods as bailee for HA and shall safely and securely store the Goods. The Customer shall do all things necessary to ensure that the Goods can be separately identified at all times.
13.2 Risk shall pass to the Customer upon delivery of the Goods notwithstanding that HA retains ownership until full payment. The Customer must effect and maintain insurance against all insurable risks to the Goods until such time as property passes to the Customer.
13.3 If the Customer makes a new object using the Goods (whether finished or not) or the Customer mixes the Goods with other goods or the Goods become part of other goods (in each case, the “New Goods”), the Customer agrees that ownership of the New Goods immediately passes to HA upon commencement of any operation or event by which the Goods would be converted into New Goods. Until HA is paid all amounts due by the Customer (whether for the Goods or otherwise) the Customer will hold the New Goods as a bailee and fiduciary for HA and the provisions of this clause shall apply.
13.4 Notwithstanding the provisions of this clause, the Customer may sell Goods and New Goods to a third party in the ordinary course of business and deliver them to that third party provided however that:
13.4.1 if the Customer is paid by the third party, the Customer holds the whole of the proceeds of sale on trust for HA and shall not mingle any of the proceeds of sale with other money and shall ensure that all such receipts are kept separate and identifiable. Immediately upon receipt of the proceeds of sale, the Customer shall remit from the proceeds received an amount equal to the amount owing by the Customer to HA; or
13.4.2 if the Customer is not paid by the third party, the Customer agrees, at HA’s option, to assign the Customer’s claim against the third party to HA upon written request by HA. For the purpose of giving effect to this clause, the Customer irrevocable appoints HA as its attorney.
13.5 If the Customer is insolvent or commits an act of bankruptcy or is or states that it is unable to pay its debts or an order is made or an application for an order is lodged or a meeting is convened for the appointment of an administrator, receiver, manager or a liquidator or payment is not made on or before a due date, then immediately upon request by HA the Customer shall deliver up all Goods to HA failing which HA by its servants and agents is hereby irrevocably authorised at any time to enter the place where the Goods are located and to remove the Goods regardless of whether the Goods have become fixed to any place, vehicle, vessel or thing and for this purpose HA is appointed the Customer’s agent. The Customer shall indemnify HA and keep HA indemnified against all costs incurred by HA and all claims made against HA arising from such removal.
13.6 If HA replaces any part of the Customer’s Property during the performance of Services or agrees to replace any Goods or part thereof, then the replaced items shall become the property of HA unless otherwise expressly agreed in writing.
14. Personal Properties Securities Act
14.1 The Customer acknowledges and agrees that for the purpose of the Personal Property Securities Act 2009 (Cth) (“PPSA”):
14.1.1 this agreement constitutes a ‘security agreement’;
14.1.2 HA holds a ‘security interest’ in respect of the Goods and in any proceeds of the sale of the Goods; and
14.1.3 any supply of Goods will constitute a ‘purchase money security interest’.
14.2 The Customer will execute all documents, provide all such information and do such further acts as HA may reasonably require to enable registration of a ‘security interest’ or ‘purchase money security interest’ under the PPSA.
14.3 To the extent permitted by law and the PPSA:
14.3.1 neither HA nor any person appointed by or acting under the directions of HA is obliged to give any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded; and
14.3.2 the Customer agrees to waive all of its right to receive any notice, statement or information under sections 95, 118, 121(4), 130, 135 and 157 of the PPSA.
14.4 To the extent that Chapter 4 of the PPSA would otherwise apply to enforcement by HA of any security interest in the Goods, the parties agree the following provisions of the PPSA are excluded:
14.4.1 to the extent permitted by section 115(1) of the PPSA: sections 123,125, 132(3)(d), 132(4), 134, 135, 142 and 143 of the PPSA; and
14.4.2 to the extent permitted by section 115(7) of the PPSA: sections 129(2) and (3), 132, 133(1)(b) (as it relates to the purchase money security interest of HA), 134(2), 135, 136(3), (4) and (5) and 137.
14.5 To the extent permitted by the PPSA the parties further agree to exclude any provisions of the PPSA which can be excluded and which would otherwise confer rights on the Customer.
14.6 The Customer will pay all reasonable legal costs arising from any disputes or negotiations with third parties claiming an interest in the Goods.
15. Additional terms
15.1 The Customer must keep confidential and must not disclose or use any confidential information of HA or HA’s suppliers which may be disclosed to the Customer by or on behalf of HA. Without limitation, confidential information of HA includes pricing and technical information relating to Goods.
15.3 The Customer shall comply with all instructions provided in connection with Goods or Services. If the Customer has any uncertainty regarding instructions or the use of Goods, the Customer should promptly seek advice from HA.
15.4 The Customer acknowledges that it has not been induced to enter into this agreement by any representation made by or on behalf of HA. The Customer has not relied on HA’s skill and judgment and the Customer has satisfied itself that the Goods or Services are suitable for the Customer’s purposes.
15.5 If any provision or part of a provision of this agreement is unenforceable, such unenforceability shall not effect any other part of that provision or any other provision. All rights, immunities and limitations of liability in these terms and conditions shall continue to have full force and effect in all circumstances and notwithstanding any breach of contract or negligence by HA or any other person entitled to rely on same.
15.6 Rights shall not be prejudiced or restricted by any indulgence or forbearance. No waiver in respect of a breach shall operate as a waiver in respect of any other breach.
15.7 This agreement shall be governed by the law applicable at HA’s place of business identified on the face of this document or in any attached or associated document.