Legal

Please find Winnellie Groups standard Terms and Conditions below.

We note that these standard Terms and Conditions do not supersede the specific details provided in individual quotation / tenders and we reserve the right to amend these Terms and Conditions in line with changing market conditions from time to time.

If you have any queries or require any clarification regarding these Terms and Conditions, please attention these requests to accounts@winnelliegroup.com which will then be responded to by someone in Winnellie Group management.

Thank you for supporting Winnellie Group

Winnellie Group PRIVACY POLICY

Introduction

Personal Information held by Coto Pty Ltd (ACN 055 317 998) trading under any of the following business names: Winnellie Hydraulics; Winnellie Valves; Winnellie Valve and Process; or Waltan Tools & Equipment and any related party (“Winnellie Group”) will be collected, secured, maintained, used and disclosed in accordance with the Privacy Act 1988 (Cth) (‘the Privacy Act’), the Australian Privacy Principles (‘APPs’) and this Policy.

Acknowledgement

This Policy is published on the Winnellie Group’s website. The Winnellie Group may vary this Policy in order to comply with the Privacy Act from time to time. Any updated version of this Policy will be posted on our website and will be effective from the date of posting. Continuing to deal with the Winnellie Group is implicit acceptance of the terms and conditions contained within this Policy as it applies from time to time.

What is Personal Information?

“Personal Information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

  1. whether the information or opinion is true or not; and
  2. whether the information or opinion is in material form or not.

“Sensitive information” is information or an opinion about a person’s racial or ethnic origin, political opinion, membership of a political association, professional association or trade union, religious or philosophical beliefs, sexual orientation or practices, criminal record, or health, genetic or biometric information. Sensitive information is a subset of Personal Information. In general, the Winnellie Group does not collect sensitive information, but if it did, the Winnellie Group would only collect sensitive information with a person’s direct consent and where it is necessary for the Winnellie Group’s business.

What information is not Personal Information?

Information where the Winnellie Group has removed any reference to a person, so that the person cannot be reasonably identifiable from the information, no longer qualifies as Personal Information.

How and when does the Winnellie Group collect Personal Information?

the Winnellie Group collects Personal Information when:

  • Providing services and related information to customers/suppliers;
  • Engaging contractors and other personnel;
  • Collecting payment information, i.e. credit card details, etc.;
  • Responding to questions regarding our goods/services;
  • Security video surveillance at the Winnellie Group sites; and

The types of Personal Information collected and held by the Winnellie Group include (depending on the circumstances) names, addresses and other contact details, details about a person’s work experience and other qualifications, date of birth, driver’s licence details, car registration details, bank account details, credit card details, photographs and video footage.

Where reasonable and practicable, the Winnellie Group will collect Personal Information directly from the person and inform the person that this is being done.

However, in some circumstances, it is necessary for the Winnellie Group to collect Personal Information through third party service providers or agents (e.g. the Winnellie Group customer information), from a source of publicly available information (e.g. the internet) or from an employer (e.g. where a contractor provides Personal Information about its staff).

Unsolicited Personal Information

If the Winnellie Group receives Personal Information that the Winnellie Group has not requested (unsolicited information) and the Winnellie Group determines that the Winnellie Group could not have collected that information under the APPs if the Winnellie Group had requested it, then the Winnellie Group will destroy or de-identify the information if it is lawful and reasonable to do so.

Use and Disclosure of Personal Information

The purpose for which the Winnellie Group uses and discloses Personal Information will depend on the circumstances in which it is collected. Generally, the Winnellie Group may use or disclose Personal Information:

  • For the purposes for which it was collected (e.g. disclosure with any credit reference agencies);
  • For a related secondary purpose, if the use or disclosure could be reasonably expected (e.g. disclosure to a contractor for the purpose of providing a service to the Winnellie Group or with any credit reporting agencies);
  • For other purposes to which an individual has consented; and
  • As otherwise authorised or required by law.

Specific purposes for which the Winnellie Group may use or disclose Personal Information include the purposes of:

  • Supplying services to, or acquiring services from, an individual, organisation or the general public;
  • Improving the Winnellie Group’s services;
  • Marketing, where the Winnellie Group has express or implied consent to contact a person using one or more types of Personal Information that it holds about them or is otherwise permitted by law to do so;
  • Considering an individual for a position (e.g. as an employee or contractor);
  • Improving the Winnellie Group’s Human Resources practices;
  • Responding to an enquiry by an individual;
  • Maintaining security over the Winnellie Group premises and systems;

The Winnellie Group may disclose Personal Information to third parties, such as law enforcement agencies or government authorities, without authorisation is some circumstances, in accordance with the APPs.

In general, the Winnellie Group does not sell Personal Information. However, if it was to, the Winnellie Group would not sell Personal Information to a third party without the consent of the individuals to whom the Personal Information applies. the Winnellie Group may sell de-identified, aggregated data to third parties that cannot be used to specifically identify an individual.

Disclosure outside of Australia

In the ordinary course of providing services, the Winnellie Group does not disclose Personal Information to overseas entities. If it was ever to, the Winnellie Group would only disclose Personal Information as permitted under the Privacy Act.

Direct Marketing

The Winnellie Group may send marketing communications in line with the individual’s previously expressed marketing preferences or as otherwise permitted under the Privacy Act and other relevant laws.

Cookies

The Winnellie Group (or third parties engaged by us) uses “cookies” and similar technology on its websites and in other technology applications. The use of such technologies is an industry standard, and help the Winnellie Group monitor the effectiveness of its advertising and how visitors use its website/applications. The Winnellie Group uses such technologies to generate statistics, measure activity, improve the usefulness of its websites/applications and enhance the user experience. The use of cookies does not involve the collection or use of any information that could identify you as an individual.

Individuals who prefer not to receive cookies can adjust their Internet browser to refuse cookies or warn when cookies are used. However, the Winnellie Group websites may not function optimally without cookies.

Information Security

The Winnellie Group will take all reasonable steps to ensure that all Personal Information held by the Winnellie Group is secure from any unauthorised access or disclosure. The Winnellie Group have implemented security policies, rules and technical measures to protect the Personal Information that it has under its control from misuse, interference, loss and unauthorised access, modification or disclosure.

Seeking access and correction of your Personal Information

An individual may request access to, or correction of, their Personal Information held by the Winnellie Group by sending a written request to the Winnellie Group.

The Winnellie Group

Phone: +61 8 8984 4939
Email: max@winnelliehydraulics.com
Post: 120 Reichardt Road
Winnellie NT 0820 | Australia

If an individual makes a written request for access to Personal Information held by the Winnellie Group, the Winnellie Group will respond to such request within a reasonable timeframe and, where reasonable and practicable, give access to the Personal Information in the manner requested by the individual. The Winnellie Group may require the person requesting access to provide suitable identification. However, the Winnellie Group may also refuse a request for access, where it is legally entitled to do so and, where reasonable, it will provide the reasons for this.

The Winnellie Group may deny a request for access to Personal Information for the reasons being if:

  • The request is frivolous or vexatious;
  • Providing access would have an unreasonable impact on the privacy of another person;
  • Providing access would pose a serious and imminent threat to the life or health of any person;
  • Providing access would prejudice the Winnellie Group’s legal rights; or
  • There are other legal grounds to deny the request.

The Winnellie Group will take reasonable steps to ensure that the Personal Information it collects is accurate, up-to-date and complete. Correction of Personal Information may be requested by contacting the Winnellie Group at the address set out above. If the Winnellie Group refuses to correct Personal Information in response to a request it will, where reasonable, provide a written notice setting out the reasons for refusal.

Complaining about a breach of the APPs.

Complaints regarding a breach of the Privacy Act, the APPSs or this Policy should be directed to the Winnellie Group.

For any complaints that are received, the Winnellie Group is entitled to verify the identity of the complainant and will reply to the enquiry within a reasonable time frame (i.e. within 30 days).

If the complaint is not resolved in a manner acceptable to the individual or the Winnellie Group has not responded within 30 days, the complaint may be submitted to the Office of the Australian Information Commissioner (‘OAIC’).

Complaints to the OAIC must be made in writing. The OAIC can receive privacy complaints through their online Privacy Complaint Form or via the following:

OFFICE OF THE AUSTRALIAN PRIVACY COMMISSIONER

Email: enquiries@oaic.gov.au
Email: max@winnelliehydraulics.com
Post: Office of the Australian Privacy Commissioner
GPO Box 5218
Sydney NSW 2001
Facsimile: (02) 9284 9666

Terms and Conditions

THE PARTIES AGREE AS FOLLOWS:

  1. Definitions

    In this Terms and Conditions, unless inconsistent with the context or subject matter, the following terms shall have the following meanings:

    • “Agreement” means any agreement or arrangement entered into between the Supplier and the Customer for the delivery of the Goods, Services and/or Hire Equipment and is comprised of the Documents.
    • “Australian Standards” means a standard published by Standards Australia International Limited ACN 087 326 690.
    • “Business Day” means a day that is not Saturday, Sunday or public holiday in Darwin in the Northern Territory of Australia.
    • “Claim” means any claim, demand, action or proceeding of any kind for any cost, expense, damage, loss, liability, fine, penalty or other amount arising under, out of or in connection with this Agreement, whether arising in contract, tort, equity, under statute or any other legal basis.
    • “Confidential Information” means all information, documents, forms, specifications, processes, statements, correspondence, meeting minutes, formulae, trade secrets, drawings, specifications, data and any other information (and copies and extracts made of or from that information and data) supplied by the Supplier concerning:
      • (i) the operations and dealings of the Supplier (if applicable); or
      • (ii) the operations and transactions of the Supplier, the Goods, Services and/or the Hire Equipment,

    which is not in the public domain (except by failure of the Customer to perform and observe its covenants and obligations under this Agreement) and which has been obtained through or by delivering the Goods, Services and/or Hire Equipment.

    • “Consequential Loss” means:
      • (i) loss of revenue, profit, anticipated profit, goodwill, production, contracts or business opportunity; and
      • (ii) loss or downtime of facilities.
    • “Customer” means the person, firm, organisation, partnership, corporation or other entity (including a trust) requesting any Goods, Services and/or Hire Equipment from the Supplier as identified in the Quotation or any other document requesting any Goods, Services and/or Hire Equipment from the Supplier.
    • “Delivery Date” means the date that the Supplier is to deliver the Goods to the Delivery Point as specified in the Quotation.
    • “Delivery Point” means the location the Supplier will deliver the Goods as specified in the Quotation.
    • “Documents” means:
      • (i) the Quotation;
      • (ii) these Terms and Conditions;
      • (iii) the Privacy Policy; and
      • (iv) any other document provided by the Supplier to the Customer with respect to the delivery of any Goods, Services and/or Hire Equipment (including without limitation any drawings, plans, specifications, etc.).
    • “Fees” means the fees and charges determined in accordance with clause 7 or as otherwise specified in the Quotation.
    • “Force Majeure Event” includes (but is not limited to) any act of god, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority uprising, earthquake, flood, pandemic, endemic or any other natural or man-made eventuality outside of the affected party’s control which causes the delay of the delivery of any of the Goods, Services, Hire Equipment or the termination of this Agreement nor which could have been reasonably foreseen by the affected party.
    • “Goods” means any article, material, product or item either procured, fabricated or manufactured by the Supplier in the delivery of any goods or Services requested by the Customer.
    • “Insolvency Event” means any of the following events:
      • (i) an application is made to a court for an order or an order is made that the party be wound up or bankrupt;
      • (ii) the corporation is or becomes or states that it is insolvent or any of the events mentioned in sections 459A to 459E inclusive of Part 5.4 of the Corporations Act 2001 (Cth) occurs in respect of the corporation;
      • (iii) a party entering into any scheme of arrangement with its creditors; or
      • (iv) anything analogous or having a substantially similar effect to any of the events specified above has under the law of any applicable jurisdiction.
    • “Hire Delivery Date” means the date for delivery or collection by the Customer of the Hire Equipment as set out in the Quotation.
    • “Hire Delivery Place” means the place for delivery or collection by the Customer of the Hire Equipment as set out in the Quotation.
    • “Hire Equipment” means the equipment that the Supplier hires to the Customer.
    • “Hire Return Place” means the place for return of the Hire Equipment as set out in the Quotation.
    • “Intellectual Property Rights” means all present and future rights conferred by law in or in relation to copyright, trademarks, designs, patents, circuit layouts, moral rights, inventions, know-how, trade secrets, Confidential Information, the right to have trade secrets and confidential information kept confidential and all other results of intellectual activity whether or not registrable, registered or patentable.
    • “Privacy Policy” means the Supplier’s privacy policy and as varied from time to time.
    • “Quotation” means a quotation or any other document provided by the Supplier to the Customer with respect to the delivery of any Goods, Services and/or Hire Equipment.
    • “Services” has the meaning set out in clause 2 of these Terms and Conditions.
    • “Supplier” means the Winnellie Group and, where applicable, includes the Winnellie Group’s Personnel.
    • “Terms and Conditions” means these terms and conditions and as varied from time to time.
    • “Winnellie Group” means Coto Pty Ltd (ACN 055 317 998) trading under any of the following business names:
      • (i) Winnellie Hydraulics;
      • (ii) Winnellie Valves;
      • (iii) Winnellie Valve and Process; or
      • (iv) Waltan Tools & Equipment.
    • “Winnellie Group’s Personnel” means the directors, officers, employees, agents and contractors of the Supplier.

  1. Services

    Subject to these terms and conditions, the Supplier will perform the Services as set out in the Quotation.

  1. Hire Equipment

    • The Supplier will use its best endeavours to deliver to or make available for collection the Hire Equipment from the Hire Delivery Place on the Hire Delivery Date.
    • The Customer acknowledges and agrees that the Hire Delivery Date or any other time or date given by the Supplier for delivery of the Hire Equipment is an estimate only.
    • The costs of any carriage of the Hire Equipment between the Hire Delivery Place and the Hire Return Place are outlined in the Quotation.
    • The Customer agrees that any failure of the Supplier to make any delivery by the Hire Delivery Date will not entitle the Customer to cancel or suspend the hire of the Hire Equipment.
    • The responsibilities of the parties in relation to maintaining and servicing the Hire Equipment are set out in the Quotation. If the Customer is expressed as being responsible for an item, then the Customer must perform that obligation at its sole cost and expense.
    • If the Hire Equipment is damaged or rendered non-operational while under the care, custody and control of the Customer, the Customer must reimburse the Supplier any repair or replacement delivery costs and expenses incurred or suffered by the Supplier that arises from or is in connection with or related to the damaged Hire Equipment.
    • The Supplier retains at all times title to the Hire Equipment.
    • The Customer must comply with all laws in relation to the use of the Hire Equipment, and if the Customer is an entity (i.e. a company), it must take all reasonable and necessary steps to ensure that all of its officers, employees, agents and contractors do the same.
    • During the hire period, the Customer bears the risk of any damage to the Hire Equipment caused by whatever reasons unless the damage is caused by the Supplier (or any of the Supplier’s Personnel).
    • No warranty is provided by the Supplier with respect to the condition of the Hie Equipment or its fitness for any particular purpose. The Customer acknowledges that it has entered into the Agreement relying solely on its own skill and judgment, and not pursuant to any representation of the Supplier.
    • The Customer covenants with the Supplier to use and operate the Hire Equipment at its sole risk at all times and the Customer shall indemnify and hold harmless and agrees to keep indemnified and hold harmless, the Supplier (including without limitation the Supplier’s Personnel) from and against:
      • (i) any loss or damage of whatever nature arising out of the Customer’s breach of this Agreement, misuse (whether innocent or wilful) of the Hire Equipment or any warranty (including without limitation legal on a full indemnity basis);
      • (ii) any damage sustained (including theft and vandalism) to the Hire Equipment caused by whatever reason whilst the Hire Equipment is in the possession and control of the Customer; and
      • (iii) any claims, liability, cost or expense of whatever nature (including without limitation, claims related to property damage, personal injury, death, fines or parking and any other traffic infringements) directly or indirectly caused to or contributed by the acts or omissions of the Customer (including its officers, agents, employees and contractors).

  1. Quotation

    • The Supplier will provide a Quotation to the Customer upon request.
    • Unless the Quotation specifies otherwise, each Quotation will be valid for 30 days from the date of the Quotation.
    • The Quotation will detail the Supplier’s standard inclusions and exclusions or any other requirements that otherwise quantify the Supplier’s offer to provide and deliver any requested Goods, Service and/or Hire Equipment.

  2. Acceptance

    By authorising the Supplier to provide and deliver any Good, Services and/or Hire Equipment, the Customer acknowledges and accepts that these Terms and Conditions form part of the Agreement. In the event that the Customer provides verbal acceptance, acceptance shall be deemed on the date that the Supplier either begins the delivery of the Goods and/or Services or on the Customer taking possession of the Hire Equipment (which includes without limitation the Supplier ordering any Good or materials to deliver the Services or commencing or making arrangements for the delivery or collection of the Hire Equipment).

  1. Delivery of Goods

    • The Supplier will use its best endeavours to deliver the Goods to the Delivery Point in the manner specified in the Quotation on the Delivery Date.
    • The Customer acknowledges and agrees that it will accept early delivery of the Goods unless otherwise agreed in writing between the parties.
    • Delivery of any Goods is taken to occur at the time the Supplier or a nominated carrier delivers the Goods to the Delivery Point even if the Customer (or its representative) is not present.
    • The Customer acknowledges and agrees that the Delivery Date or any other time or date given by the Supplier for delivery is an estimate only.
    • The Customer must still accept delivery of the Goods even if the delivery is after the Delivery Date.
    • The Supplier will not be liable for any loss or damage incurred by the Customer as a result of the delivery of any Goods being late.
    • The Customer agrees that any failure of the Supplier to make any delivery will not entitle the Customer to cancel or suspend the Good and/or Services.
    • The Customer is responsible for the cost of delivery of all Goods and indemnifies the Supplier of these costs (including without limitation any carriage costs and expenses) unless otherwise specified in the Quotation or agreed in writing between the parties.
    • The Customer acknowledges and agrees that any measures to protect the Goods in storage or transit shall be at the Customer’s own costs and expense.

  2. Calculation of fees and other charges

    • The fees for the Goods and/or Services are as set out in the Quotation as varied from time to time in writing by the Supplier (“Fees”).
    • Where the Quotation provides for the Fees to be calculated based on time spent providing the Services, then the Fees for the Services are calculated on the time spent by the Supplier’s Personnel attending to the delivery of the Goods and/or Services multiplied by the relevant hourly rates and are outlined in the Quotation.
    • Fees for the Hire Equipment are calculated on the day rate multiplied by the number of days the Customer hires the Hire Equipment and are outlined in the Quotation.

  3. Variations

    • The Supplier will notify the Customer of any changes to these Terms and Conditions. Notice is deemed to be given by the Supplier when the Supplier does any of the following:
      • (i) sends a notice of the amendment to the Customer at any address supplied by the Customer to the Supplier; or
      • (ii) publishes the amended Terms and Conditions on its website.
    • Without limiting clauses 8(a) and 29(e) of these Terms and Conditions, the Supplier may vary or withdraw any Quotation at any time prior to the Customer’s acceptance of the Quotation.
    • Other than in accordance with these Terms and Conditions, no variations to these Terms and Conditions or the delivery of any Goods, Services and/or Hire Equipment takes effect unless expressed in the Quotation or agreed in writing by the Supplier.
    • Any Goods, Services and/or Hire Equipment requested by Customer outside of the scope of the Goods, Services and/or Hire Equipment set out in the Quotation, will be charged by the Supplier to the Customer at the Supplier’s standard rates (which will be set out in the Quotation) in addition to the amount set out in the Quotation.
    • The Customer may request any additional Goods, Services and/or Hire Equipment either verbally or in writing. However, in the event that the Supplier considers that the additional Goods, Services and/or Hire Equipment are material (being plus or minus 10% of the total amount of the Goods, Services and/or Hire Equipment set out in the Quotation), then the Supplier may require the Customer’s written consent prior to delivering any additional Goods, Services and/or Hire Equipment.

  4. Invoicing arrangemetns

    • For Goods, Services and/or Hire Equipment where the delivery or hire period extend longer than a month, the Supplier will invoice the Customer a progressive invoice on or around the 25th day of each month, which will be based on the percentage of the Goods, Services and/or Hire Equipment completed as of the date of the invoice;
    • For Goods and/or Services that are completed in a month or the Hire Equipment is returned within the same month of the Hire Delivery Date, the Supplier will invoice the Customer on:
      • (i) delivery of the Goods;
      • (ii) on completion of the Services; or
      • (iii) on return of Hire Equipment.
    • The Supplier will include a description of the Goods, Services and/or Hire Equipment delivered during the period that the invoice relates.
    • The Supplier has not made any allowances for any money to be withheld by way of retention or liquidated damages and the Customer is not permitted to withhold any money by way of retention or liquidated damages (unless authorised by the Supplier in writing prior to the commencement of the delivery of the Goods, Services and/or Hire Equipment) including without limitation any re-work or repair whether or not agreed by the Supplier under this Agreement.

  5. Credit

    • The Supplier may grant credit, at its sole discretion, and subject to the Customer providing a fully completed application form and to the Customer’s references being taken up and reviewed by the Supplier. The Supplier reserves the right to carry out checks with any credit reference agencies where appropriate before offering credit to the Customer.
    • The Supplier may reduce the credit limit or cancel the Customer’s credit at any time for any reason whatsoever (at its absolute discretion).
    • If credit is withdrawn for any reason the Supplier shall be entitled to any or all of the remedies under clause 11(b).

  6. Payment

    • Payment of invoices are due fourteen (14) days from the date of the invoice, unless an alternative arrangement has been made between the Supplier and the Customer prior to the commencement of the delivery of the Goods, Services and/or Hire Equipment.
    • If for any reason whatsoever the Customer does not pay an invoice by the due date, the Supplier will be entitled to:
      • (i) stop providing the Goods, Services and/or Hire Equipment to the Customer;
      • (ii) request that the Customer make payment in advance for any further Goods, Services and/or Hire Equipment;
      • (iii) charge interest at a rate of two and a half percent (2.5%) per calendar month on all overdue accounts, daily from the date that the payment became due until the date that the Supplier has received payment for that overdue account; and/or
      • (iv) enter into the site/premises/property of the Customer and repossess and remove all of its Goods and/or Hire Equipment that remain at its property under clauses 3 and 17 (including Goods that have been installed other than where title has not yet passed under clause 17).
    • In the event of any payment disputes arising during the provision of the Services, the dispute will be governed by the Construction Contracts (Security of Payments) Act 2004 (NT).
    • The Supplier may claim from the Customer all costs, expenses and charges incurred by the Supplier or its agents or contractors relating to any action taken by the Supplier to recover any Goods, Hire Equipment or monies, which include without limitation, any collection agent costs or legal costs (on a full indemnity basis).
    • Where Goods, Services and/or Hire Equipment provided by the Supplier have been requested by an agent (or a person purporting to act as an agent) for and on behalf of the Customer, the agent and Customer shall be jointly and severally liable for payment of all accounts due to the Supplier with respect to those Goods, Services and/or Hire Equipment.
    • The Customer agrees to indemnify the Supplier in respect of the full amount of any fees, costs, disbursement or expenses incurred (including court fees and its reasonable legal costs) arising from any overdue payment by the Customer or any other breach by the Customer of the Agreement.

  7. cancellation / termination

    • The Supplier may terminate this Agreement or stop providing the delivery of the Good, Services and/or Hire Equipment to the Customer if:
      • (i) the Customer does not comply with this Agreement (including without limitation any other conditions set out in the Quotation);
      • (ii) the Customer suffers and Insolvency Event;
      • (iii) the Supplier forms the opinion (in its absolute discretion and acting reasonably) that the relationship between the Customer and the Supplier is no longer tenable for the Supplier to deliver the Goods, Services and/or Hire Equipment;
      • (iv) the Supplier is of the view (in its absolute discretion and acting reasonably) that by continuing to deliver the Goods, Services and/or Hire Equipment it may breach any applicable Australian Standard, building code or any other law in relation to the delivery of the Goods, Services and/or Hire Equipment; or
      • (v) for any other reason whatsoever provided that the Supplier first provides 14 days’ notice to the Customer.
    • For the avoidance of doubt, where the Supplier terminates this Agreement pursuant to clause 12(a):
      • (i) the Supplier will be entitled to be paid for all services completed and a reasonable proportion of the services commenced but not completed (as determined at the sole discretion of the Supplier); and
      • (ii) the Customer shall not be entitled to any damages or claims from the Supplier and releases the Supplier from all claims and damages relating to any termination pursuant to clause 12(a).
    • The termination of this Agreement will not prejudice any rights or remedies already accrued to the Supplier under, or in respect of any breach of, this Agreement.

  8. Force majeure event

    • Neither party shall be liable to the other for any failure to deliver the Goods, Services and/or Hire Equipment which is due to a Force Majeure Event that is beyond the control of that party.
    • Any party affected by such an event shall inform the other party of the Force Majeure Event as soon as reasonably practical and shall use all reasonable endeavours to comply with this Agreement. If the Supplier cannot continue to deliver the Goods, Services or Hire Equipment after a period of three (3) months from the occurrence of the Force Majeure Event then either party may terminate this Agreement in accordance with clause 12.

  9. The Supplier’s Obligations

    The Supplier warrants that:

    • it holds all relevant qualifications required to deliver the Goods and/or Services and hire the Hire Equipment;
    • The Supplier’s Personnel are qualified, skilled and trained to deliver the Goods, Services and/or Hire Equipment;
    • it will be responsible for the payment of all employee entitlements (including wages and superannuation contributions);
    • it has obtained and will maintain workers compensation insurance and public liability insurance throughout the delivery of the Goods, Services and/or Hire Equipment; and
    • to procure that all of the Supplier’s Personnel attend any Customer based site/safety induction training as and when required.

  1. The Supplier’s warranties

    Except to the extent that cannot be excluded at law, the Supplier makes no representations and gives no warranties other than those set out in this Agreement and will not be liable to the Customer for any damages, costs or other liabilities whatsoever (including Consequential Loss) in relation to the delivery of the Goods, Services and/or Hire Equipment.

  1. Customer Obligations

    By acceptance of the Supplier to deliver the Goods, Services and/or Hire Equipment and in the event that the Customer is also carrying out any works on the site that the Supplier is to deliver the Goods, Services and/or Hire Equipment, the Customer agrees that:

    • the Customer has obtained and will maintain public liability insurances which provides cover for all works carried out by the Customer, including against liability for work carried out by the Customer’s employees, agents or contactors in conjunction with the Goods, Services and/or Hire Equipment provided by the Supplier;
    • in these circumstances, the Customer agrees that the Supplier will not be liable to the Customer in respect of any damage, loss or injury of whatsoever nature or kind, however caused, whether by the Supplier’s negligence or the negligence of one of the Supplier’s Personnel or otherwise which may be suffered or incurred whether directly or indirectly, in respect of the Goods, Services and/or Hire Equipment provided under this Agreement; and
    • the Customer will not solicit the engagement of any of the Supplier’s Personnel introduced directly or through any other means without the express permission of the Supplier and should this be requested, the Customer agrees to pay to the Supplier a permanent placement fee of 20% of that person’s annual salary package.

  1. Passing on Risk and Retention of Title

    • Risk of any Goods supplied shall pass to the Customer:
      • (i) for Goods not installed by the Supplier, at the time when the Goods have been delivered to the Delivery Point as deemed by the Supplier; or
      • (ii) for Goods installed by the Supplier, upon completion of that part of the Services.
    • The Customer acknowledges and agrees that the title of the Goods does not pass to the Customer until payment has been made and received in full by the Supplier.
    • The Customer acknowledges and agrees that it is in possession of such Goods as bailee for the Supplier until payment has been made and received in full by the Supplier.

  2. Defects / Material

    • The Customer shall inspect the Goods upon delivery and notify the Supplier of any defects within 3 days of delivery.
    • The Customer shall grant access to the Supplier to inspect any Goods, Services and/or Hire Equipment provided in order for the Supplier to assess any defect raised by the Customer.
    • It will be at the absolute discretion of the Supplier to determine how to rectify or resolve any defect in any Goods, Services and/or Hire Equipment.
    • The Supplier will not be held liable for any Consequential Loss or damages however caused by any defect.
    • Where a certain brand or product has been requested and is not available to the Supplier, the Supplier may then, at its absolute discretion, supply another product with identical or similar properties to which was ordered and the Customer will be obliged to accept and pay for the equivalent product as if the ordered brand had been supplied.

  3. Subcontracting

    • The Contractor acknowledges and agrees that the Supplier may subcontract the whole or any part of the Goods, Services and/or Hire Equipment.
    • The Supplier acknowledges and agrees that subcontracting does not relieve the Supplier from any of its obligations under this Agreement.

  4. PPS Law

    • This clause applies to the extent that this Agreement provides for a ‘security interest’ for the purposes of Personal Property Securities Act 2009 (Cth) (“PPSA”). References to the PPSA in this Agreement includes references to amended, replacement and successor provisions, legislation or regulations (“PPS Law”).
    • The Supplier may, at any time, register a security interest and the Customer must do (or procure) anything (such as obtaining consents and signing documents), at the Customer’s own costs, which the Supplier requires for the purposes of:
      • (i) ensuring that the Supplier’s security interest is enforceable, perfected and otherwise effective under the PPS Law;
      • (ii) enabling the Supplier to gain first priority (or any other priority agreed to by the Supplier in writing) for its security interest; and
      • (iii) enabling the Supplier to exercise its rights in connection with the security interest.

    The Customer agrees to comply with any of requirements of the Supplier under this clause 20 within the time stipulated by the Supplier.

    • The rights of the Supplier under this Agreement are in addition to and not in substitution for the Supplier’s rights under this Agreement or any other law (including the PPS Law) and the Supplier may choose whether to exercise its rights under this Agreement and/or under such other law, as it sees fit. To avoid any doubt, the Suppliers security interest will attach to proceeds (if any).
    • To the extent that the PPS Law applies to any security interest under this Agreement, each party agrees that each of the provisions of the PPSA which section 115 of the PPSA permits parties to “contract out” of (other than sections 117, 128, 134 and 135) do not apply to the enforcement of any security interest provided pursuant to this Agreement.
    • The Customer (and any guarantor (if any)) agrees to waive its right to receive:
      • (i) notices which sections 157(3) of the PPSA permits it to be waived and to the extent capable of being waived and any notice under any other provision of the PPS Law; and
      • (ii) anything from the secured party under section 275 of the PPSA and agrees not to make any request of the secured party under that section.
    • For the purposes of section 275 of the PPSA, the parties agree that neither of them may disclose any information of the kind referred to in section 275(1) of the PPSA.
    • Each party acknowledges and agrees that the information set out in this Agreement is confidential in nature and that each party owes the other a duty of confidence in relation to that information.

  1. Indemnity

    • The Customer acknowledges and agrees to indemnify the Supplier and the Supplier’s Personnel from and against any and all claims, expenses, losses, damages and costs (including reasonable legal fees incurred on a solicitor/client basis) suffered or incurred by the Supplier which arise from a result of or in connection with any injury to or death to any person caused or contributed to by the Customer’s negligence or wilful misconduct (or the negligence or wilful misconduct of any of the Customer’s officers, employees, agents or contractors).
    • The Customer indemnifies the Supplier and its personnel from and against any and all claims, expenses, losses, damages and costs (including reasonable legal fees incurred on a solicitor/client basis) suffered or incurred by the Supplier which arise as a result of or in connection with the Customer’s breach of this Agreement.

  2. Limitation of liability

    • The Supplier will not, under any circumstances, be liable to the Customer, whether directly or indirectly for any third-party claim arising out of the supply of the Goods, Services and/or Hire Equipment or the performance or non-performance of any obligations under this Agreement.
    • The Supplier will not be liable to the Customer for any indirect or Consequential Loss, economic loss and/or loss of profit, income, business, production, reputation or goodwill.
    • Any liability of the Supplier which may arise under this Agreement is limited to the maximum extent permitted by law.
    • To the extent permitted by law, all express or implied warranties, conditions or representations relating to the Goods, Services and/or Hire Equipment that are not contained in this Agreement are excluded. If any non-excludable condition or warranty is implied into this Agreement and such condition or warranty is breached, the liability of the Supplier in respect of such breach will be limited to (at the Supplier’s option in its absolute discretion):
      • (i) replacement of the defective Goods, Services and/or Hire Equipment; or
      • (ii) payment of the costs of replacing the defective Goods, Services and/or Hire Equipment or of acquiring equivalent products.

  1. Confidentality

    • Subject to clause 23(b), the Customer shall not, either during the delivery of the Goods, Services and/or Hire Equipment or after the termination of this Agreement divulge (whether directly or indirectly) to any person any trade secret or other information which the Customer knows or a person acting reasonably would know is proprietary and therefore Confidential Information concerning the past, existing or future business, operations, administration or strategic plans or affairs of the Supplier of which the Customer has become aware during the course of or incidental to this Agreement and the Customer will use its best endeavours to prevent publication or disclosure of any such proprietary or Confidential Information belonging to the Supplier.
    • Disclosure to directors and employees:
      • (i) the Customer may disclose the Confidential Information to such of its directors and employees as is necessary to for the purposes of this Agreement; and
      • (ii) the Customer warrants that each person to whom the Customer is permitted to disclose the Confidential Information, before such disclosure is made, is subject to contractual or other duties of confidentiality to the Customer at least to the extent imposed upon the Customer pursuant to this Agreement.
    • The Customer will immediately upon termination of this Agreement, or on written demand by the Supplier, deliver up to the Supplier, all material in whatever form, comprising or containing any of the Confidential Information referred to in clause 23(a) (including all copies) and all other property of the Supplier which may be in possession of the Customer or any third party under the Customer’s control.

  2. Intellectual Property Rights

    • Unless agreed otherwise in writing by both the Supplier and the Customer:
      • (i) any design, drawing, specification or other document (in written or electronic form) prepared or produced by the Supplier (or any the Supplier’s Personnel) shall remain the exclusive property of the Supplier; and
      • (ii) the Customer shall not disclose any design, drawing, specification or other document (in written or electronic form) prepared or produced by the Supplier (or any the Supplier’s Personnel) to any third party.
    • The Customer agrees to indemnify the Supplier in respect to any claim for infringement of any Intellectual Property Rights arising from:
      • (i) the design of any item to a specification provided by the Customer; or
      • (ii) the installation by the Supplier of any Goods supplied by the Customer.

  1. GST

    • Subject to as may otherwise be expressly stated, and subject to the provisions set out below, if any supply made under or in connection with this Agreement by one party (“Supplier”) to the other party (“Acquirer”), is subject to GST, the payment for that supply will be increased by an amount equal to the GST payable.
    • The Acquirer will not be obligated to make any payment for either the supply referred to in clause 25(a) or on account of the GST referred to in clause 25(a) until the Supplier has issued a tax invoice to the Acquirer for the supply to which the payment relates.
    • If a payment made by one party to the other party is a reimbursement or indemnification of a cost, expense, loss or liability incurred by that other party, the payment shall be reduced by an amount for which that party is entitled to an input tax credit.
    • Words or expressions used in this clause, which are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth), have the same meaning.

  2. Relationship between the Supplier and the Customer

    • The parties acknowledge that the legal relationship between the Supplier and the Customer is that of a customer and independent contractor.
    • Nothing in this Agreement renders the Supplier an officer, agent, partner or joint venturer of the Customer and the Customer must not hold itself out as such (and likewise).
    • Nothing contained in this Agreement will constitute or deem the Supplier or any its personnel to be employees, agents or servants of the Customer (and likewise).
    • As an independent contractor, the Supplier must, unless otherwise provided in this Agreement, exercise independent control, management and supervision over the performance of its personnel.

  3. Privacy Policy

    The Customer acknowledges and agrees that the Privacy Policy is expressly incorporated into this Agreement and can be viewed from the Supplier’s website.

  1. Service of notices

    • A notice, consent, information or request that must or may be given or made to a party under this Agreement is only given or made if it is:
      • (i) delivered or posted to that party at the address specified in the Quotation, or
      • (ii) faxed or emailed to that party at the fax number or email address (if any) stated in the Quotation,

    however, if a party gives to the other party 2 Business Days written notice of a change of that, or a subsequent, address or fax number or email address, a notice, consent, information or request is only given or made by that other party if it is delivered, posted or faxed or emailed to the latest address or to the latest fax number or email address.

    • A notice, consent, information or request is to be treated as given or made in accordance with the following rules:
      • (i) if it is delivered, when it is left at the relevant address;
      • (ii) if it is sent by post, 4 Business Days after being posted; or
      • (iii) if it is sent by fax or email, as soon as the sender receives from the sender’s fax machine or email system a report of an error free transmission to the correct fax number or email address.
    • If a notice is delivered or sent by facsimile or email after 5:00pm ACST on any day or on a day that is not a Business Day, the notice will be deemed to have been received on the next Business Day.

  1. General

    • Unless amended in the Quotation or agreed in writing by the Supplier, these Terms of Conditions apply to all Goods, Services and/or Hire Equipment provided by the Supplier to the Customer.
    • No prior statements made by the Supplier or the Customer, nor any correspondence between the Supplier and the Customer are incorporated into any Agreement unless included in the Quotation or separately agreed in writing by the Supplier.
    • No representation made by or on behalf of the Supplier by any of the Supplier’s Personnel (including without limitation to any advice or recommendations as to the quality or suitability for specific purposes of the Goods, Services and/or Hire Equipment) takes effect unless expressed in the Quotation or separately confirmed in writing by the Supplier and the Customer agrees that it does not enter into any agreement in reliance on such representations unless so confirmed in the Quotation.
    • In the event of any conflict or inconsistency between any of the Documents or Goods and/or Services, then the descending order of precedence applies as set out in the definition of Documents in clause 1(j) to the extent of the conflict or inconsistency.
    • The Customer acknowledges and agrees that the Supplier may:
      • (i) make such changes to the specification of any Goods, Services and/or Hire Equipment as are required to comply with any applicable safety, Australian Standard, building code or statutory requirements; and
      • (ii) increase its prices set out in the Quotation after the acceptance of the Agreement by the Customer to reflect any increases in the price the Supplier is charged by its suppliers for any goods or materials.
    • No waiver by the Supplier of any of these Terms and Conditions or this Agreement or forbearance to enforce any remedy it is entitled to shall prejudice of the Supplier’s other rights and remedies or operate as a waiver of any other breach by the Customer under this Agreement or delivery of the Goods, Services and/or Hire Equipment provided by the Supplier to the Customer.
    • Where any provision of this Agreement is rendered void, unenforceable, or otherwise ineffective by operation of law, that provision will be considered to be severed from this Agreement and such severance shall not affect the validity, enforceability or effectiveness of any other provision in this Agreement.
    • This Agreement constitutes the entire agreement between the parties concerning the subject matter of the Agreement and any previous agreement, understanding and negotiations on the subject matter are excluded.
    • This Agreement is governed by and are to be construed in accordance with the laws of the Northern Territory of Australia and the parties submit to the non-exclusive jurisdiction of the courts of the Northern Territory in respect of any dispute arising in respect of it.

  2. Interpretation

    In this Agreement:

    • headings are for convenience only and do not affect interpretation;

    and unless the context indicates a contrary intention:

    • a reference to any person includes that person’s executors, administrators, successors, substitutes and assigns, including any person taking by way of novation;
    • a reference to this Agreement or to any other agreement, deed or document includes, respectively, this Agreement or that other agreement, deed or document as amended, novated, supplemented, varied or replaced from time to time;
    • words importing the singular include the plural (and vice versa), words denoting a given gender include the other gender and words denoting individuals include corporations (and vice versa);
    • references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of this Agreement and a reference to this Agreement includes any schedule, exhibit and annexure;
    • if more than one person is under an obligation to act or not to act under this Agreement, the liability of those persons so identified binds each of them severally and not jointly;
    • where any word or phrase is given a defined meaning, any other part of speech or grammatical form in respect of that word or phrase has a corresponding meaning;
    • the word “includes” in any form is not a word of limitation;
    • references to “$” or “dollars” are to Australian dollars unless otherwise indicated; and
    • if more than one person receives the same benefit under this Agreement the benefit is to be enjoyed by each of them severally.