Terms and Conditions Epiroc Australia
1 October 2021
EPIROC AUSTRALIA PTY LTD STANDARD TERMS AND CONDITIONS OF SALE
(a) These Terms and Conditions (Agreement) apply to products (Products), and to services (Services), that Epiroc Australia Pty Ltd ABN 70 000 086 706 (us, our and we) supply to the purchaser (you).
(b) Nothing in this Agreement (including clauses 6, 7 and 8) affects any non-excludable statutory rights or remedies that you may have.
2. PRICE AND TAXES
(a) The prices in relation to the Products and/or Services do not include taxes. You must pay all taxes arising from, or relating to, this Agreement. Taxes mean all taxes of any kind (including stamp duties) other than taxes on our income.
(b) Without limiting clause (a), you must pay to us an amount equal to any goods or services tax that applies to a supply. We will provide you with a tax invoice.
3. DELIVERY AND CHANGES
(a) We will provide the Products and Services by the dates agreed in writing with you.
(b) You must inspect Products on delivery and notify us of any short delivery or transport damage within 5 days after receiving the delivery. Notification does not make us liable for short delivery or damage or oblige us to provide additional or replacement Products.
(c) We will be entitled to an extension of time to the delivery/completion date of the Products and Services for delays due to:
(i) any act or omission of you, your employees, agents, other contractors or any third party;
(ii) any event of force majeure as set out in clause 9;
(iii) any variation;
(iv) any direction to suspend delivery of the Products or the performance of the Services by you; or
(v) any other reason beyond our reasonable control.
(d) You cannot cancel or change an order for a Product or a Service (including, to avoid doubt, a delivery date or any specifications or requirements) without our prior written consent.
4. PAYMENT TERMS
(a) Customers may have an account with Epiroc (Account Customers) or may purchase Products and Services individually (Non- Account Customers).
` (b) For Account Customers:
(i) payment for a machine is due 7 days after the invoice date; and
(ii) payment for all other Products, and payment for Services, is due 30 days after the invoice date.
(c) Non-Account Customers: payment is due before delivery of the Product or on completion of the Services.
(d) Without limiting any other right or remedy, we may charge you daily interest, at 1.5% per month, compounding monthly, on overdue amounts. If we charge interest, then you must pay it within 7 days after we request payment.
(e) We may set-off and deduct from any amount payable to you the amount of any claim that we may have against you or any sum which we assert is or may become payable by you, whether under this Agreement or otherwise.
5. TITLE AND RISK, INSURANCE & REPOSSESSION
(a) Title to a Product only passes to you when we have been paid in full. Prior to that, you are a bailee only and you do not obtain any form of interest in the Product (whether legal, equitable or otherwise). Risk in a Product passes to you when we provide it to a carrier, deliver it to a place you nominate or receive payment in full (whichever occurs first). We do not have to give any form of notice that risk or title has passed.
(b) We are not required to have any insurance for Products or Services (including transit, theft, liability or damage insurance).
(c) If you have a Product and title has not passed to you, then:
(i) you must store the Product separately and ensure that it is clearly marked as our property; and
(ii) you irrevocably authorise us to enter any premises and take possession of and remove the Products if you are (or are about to become) insolvent or subject to any form of administration or insolvency process of any kind (whether voluntary or involuntary). To avoid doubt, doing any of these things does not affect your liability under this Agreement (including your liability if a Product is lost, damaged or stolen or seized).
(d) To avoid doubt, doing any of the things under clause 5(c)(i) or 5(c)(ii) does not affect your liability under this Agreement (including your liability if a Product is lost, damaged, stolen or seized).
6. REFUNDS, EXCHANGES AND RETURNS
Unless otherwise agreed in writing, we do not provide refunds, or exchange or accept the return of Products.
The current version of the Epiroc Australia Pty Ltd Standard Warranty is incorporated into this Agreement (a copy of which is available at any time on request).
To the maximum extent permitted by law:
(a) we exclude all implied terms (statutory or otherwise - including implied warranties) of any kind;
(b) we exclude all liability for indirect and consequential loss or damage howsoever arising out of, related to or in connection with this Agreement. Such exclusion will apply in contract, tort and otherwise at law irrespective of cause and notwithstanding the negligence or breach of duty of us or any other party. Consequential loss or damage means loss of revenue, loss of profit, loss of product or production, business interruption, loss of business opportunity, loss of savings, failure to realise expected profits, loss of goodwill, downtime and other like risks in each case whether direct or indirect and whether or not foreseeable at the date of execution of this Agreement or at any time;
(c) notwithstanding any other provision to the contrary in this Agreement, our maximum liability for loss or damage howsoever arising out of, related to or in connection with the performance or non-performance of this Agreement, whether in contract, tort or otherwise at law irrespective of cause and notwithstanding the negligence or breach of duty by us or any other party, shall be limited in aggregate for any and all claims:
(i) arising from or relating to a Product: to the price of the Product; and
(ii) arising from or relating to a Service: to the price of the Service.
(d) our liability is reduced to the extent that it was caused or contributed to by an act or omission by you or by any of your personnel, employees, or agents (including subcontractors);
(e) clauses (a) – (d) apply to loss or damage of any kind (direct, indirect or otherwise), however caused, whether in contract, tort (including negligence), under any statute or otherwise, arising from or related in any way to this Agreement (including arising from or related in any way to the Products or the Services); and
(f) if a statute implies a term into this Agreement, and it cannot be excluded, then our liability for breaching it will be limited (at our sole and unfettered option) to:
(i) for Products: repair, replacement with equivalents or paying the cost of such repair or replacement; and
(ii) for Services: resupply or paying the cost of resupply. We may choose not to limit our liability in any of these ways.
9. FORCE MAJEURE
We will not be in breach of this Agreement if the breach is caused by an event beyond our reasonable control. Without limitation, the following are taken to be events beyond our reasonable control: any form of industrial action, health pandemics, riots, acts of war or terrorism, fires, floods, storms, breakdowns, natural disasters, Acts of God, scarcity, unavailability or delay in obtaining transportation or materials (including deliveries from subcontractors), power restrictions, changes to laws, and all circumstances beyond our reasonable control, whether any of these things affect us, our suppliers or our Related Bodies Corporate) and whether they occur within or outside Australia. Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
10. CONFIDENTIAL INFORMATION & INTELLECTUAL PROPERTY
(a) Confidential Information means any information that concerns the business, finances, technology, processes, know-how, customers or suppliers of a disclosing party and is disclosed to or acquired by the receiving party and which:
(i) is by its nature confidential; or
(ii) is designated by the disclosing party as confidential; or
(iii) the receiving party knows or ought to know is confidential,
But does not include information which:
(iv) is or becomes public knowledge other than by a breach of this Agreement; or
(v) is in the possession of the receiving party without restriction in relation to disclosure on or before the date on which it is disclosed to or acquired by the receiving party; or
(vi) has been independently developed or acquired by the receiving party, where the burden of establishing any of the exceptions referred to in clause 10(a)(iv)-(vi) will be on the receiving party.
(b) A party must keep the other party’s Confidential Information confidential and must ensure that the Confidential Information is not disclosed to any person other than:
(i) to a Related Body Corporate) of the receiving party; or
(ii) to the extent required, to a court of law, stock exchange, government department or regulatory authority having jurisdiction over the receiving party or pursuant to any necessarily applicable legislation or regulation; or
(iii) to the extent that disclosure must be made to legal advisers, auditors or other consultants who need to know the Confidential Information solely for the purposes of this Agreement; or
(iv) to any other person to whom the disclosing party has agreed in writing that the Confidential Information may be disclosed.
(c) The receiving party must notify the disclosing party of any such requirement as soon as it becomes aware of it and must assist the disclosing party in any reasonable action that the disclosing party requires the receiving party to take to limit the required disclosure (or any use or further disclosure) of the Confidential Information.
(d) Prior to disclosing any Confidential Information of the disclosing party to a third party, the receiving party must:
(i) make the third party aware that the information is the Confidential Information of the disclosing party; and
(ii) unless prohibited by law, obtain the third party’s agreement that it will only use or disclose the Confidential Information solely as set out in this clause.
(e) Intellectual Property Rights means all intellectual property rights, including, without limitation, copyright, moral rights, trade marks (whether registered, registrable or not), patents, designs (whether registered, registrable or not), circuit layout rights, inventions, work methods, trade secrets and any other analogous rights, including, without limitation, the right to have Confidential Information kept confidential.
(f) All Intellectual Property Rights created by us for the purposes of this Agreement shall remain vested in us at all times. Nothing in this Agreement contemplates or effects an assignment of Intellectual Property Rights or any legal or equitable interest in the Intellectual Property Rights to you whether those Intellectual Property Rights were or will be created for the purposes of this Agreement or otherwise.
(g) Subject to clause 10(f), we grant to you a royalty free, non-exclusive, non-transferable, non-sublicensable, personal license for the term of this Agreement to any Intellectual Property Rights for the limited purpose of performing your obligations under this Agreement.
(h) Without limiting clause 10(g), you must not use (or allow anyone else, including a service provider, to use) any of our Intellectual Property Rights to: (i) work on any of our products (including to perform maintenance) other than where the work is permitted by clause 10(i) below; or (ii) create a document (including a maintenance schedule or a repair manual).
(i) You may use documents that we provide with a Product to perform maintenance or repair work on that Product.
11. CUSTOMER TERMS
None of your terms will apply to or affect this Agreement in any way. This applies even if we accept the terms or they are deemed to have been accepted by us if we do a particular thing (eg provide goods or services, accept an order, accept payment and so on) and we do it.
(a) You acknowledge and agree that:
(i) this Agreement is a security agreement, and creates a purchase money security interest in our favour (Security Interest), in accordance with the Personal Property Securities Act 2009 (Cth) (PPSA);
(ii) value has been given to you for the Security Interest or you have done an act by which it has arisen;
(iii) we may register a financing statement for the Security Interest;
(iv) you waive your right to receive a registration event notice;
(v) the collateral is a class (“Other Goods” (non inventory, commercial property)) comprising all goods supplied under this Agreement; and
(vi) PPSA Sections 95, 130, 132(3)(d), 132(4), 135 and 143 will not apply.
(i) must not do (or fail to do) anything which could (or does) interfere with (or affect) a Security Interest of ours (including a right to enforce or register one);
(ii) must assist us in registering, perfecting, enforcing or otherwise dealing with a security interest of ours or any of our other rights; and
(iii) must (if you breach this clause 12(b) comply with our instructions as to the treatment of any goods provided under this Agreement (including procuring access to third party premises).
(c) Each of clauses 12(a)(i)-(vi) and 12(b)(i)-(iii) are severable without affecting the others in any way. This clause 12 does not affect any other security interests or limit our rights or remedies under the PPSA.
(d) You must meet all of your obligations under this clause 12 solely at your own cost.
13. DISPUTE RESOLUTION
(a) In the event of any difference or dispute (Dispute) between the parties concerning or arising out of this Agreement, the party initiating the dispute must give the other party notice setting out the nature of the dispute and available dates to meet to resolve the dispute.
(b) Notwithstanding the existence of a Dispute, each party will continue to perform its obligations under this Agreement.
(c) Senior representatives of the parties must meet to attempt to resolve the Dispute in good faith prior to the commencement of any proceedings.
(d) Either party may commence legal proceedings in relation to the Dispute, or refer the Dispute to arbitration if:
(i) the parties fail to resolve the Dispute within 30 days of the first meeting of the senior representatives of the parties;
(ii) the parties fail to agree on a meeting within 14 days after receiving notice of the Dispute; or
(iii) a party fails to attend a scheduled meeting.
(e) In the event of a dispute of a payment claim, you are obliged to pay the undisputed amounts in accordance with the payment terms of this Agreement, and you are only not obliged to pay amounts which are the subject of a genuine dispute.
(f) Nothing in this clause 13 prevents a party from commencing proceedings to seek injunctive or urgent declaratory relief for a dispute or any other matter arising under this Agreement.
14. COMPLETE AGREEMENT & THIRD PARTY RIGHTS
(a) This is the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements, arrangements, correspondence and discussions of any kind relating to its subject matter. This Agreement may only be varied by written agreement.
(b) This Agreement does not confer any rights or benefits upon any third parties and any such rights or benefits are excluded. To avoid doubt, this exclusion applies to rights or benefits of any kind, however arising, including under any form of third party beneficiary law.
15. ASSIGNMENT AND GOVERNING LAW
(a) You may not deal with (including, to avoid doubt, assign) any of your rights or obligations under this Agreement without our prior written consent and any dealing without that prior written consent is void and of no effect.
(b) We may at any time assign or novate or otherwise transfer all or any part of our rights or liabilities under this Agreement to our Related Bodies Corporate
(c) This Agreement is governed by the laws of Western Australia, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia, Australia.
(a) A notice, consent or other communication required or permitted to be given under this Agreement shall be in writing and may be given or served by:
(i) delivering the notice by hand at that other party's address for service;
(ii) sending the notice by certified mail to the other party's address for service;
(iii) sending the notice by email to the email address of the addressee.
(b) Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:
(i) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(ii) be severed from this Agreement in any other case,
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
(c) We are an independent contractor in relation to you and no other relationship applies (including, for the avoidance of doubt any employment, trust, partnership, joint venture or agency). Neither party authorises the other to act on its behalf (whether as an agent or otherwise) or to bind it any way. A party must not in any way (whether expressly or impliedly) bind the other party or enter into any agreements or make any commitments or representations on behalf of the other party.
(d) Each party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.
ADDITIONAL TERMS AND CONDITIONS (17 TO 18) FOR EPIROC PRODUCTS WHICH ARE SERVICE EXCHANGE COMPONENTS
17. RETURNED COMPONENTS
(a) Service Exchange Components are defined in the Epiroc Australia Parts and Services Warranty.
(b) Following the supply of any Service Exchange Component you must in exchange return a compatible part or product (Returned Component). Variable credit up to 100% of the specific component core credit value may apply.
(c) To be eligible for any credit, the component core must be returned to the Epiroc premises which supplied the Service Exchange Component within 30 days after replacement. The core must be returned in an Epiroc approved transport box or frame.
(d) You are responsible for all freight costs and transit insurances associated with the return of the Service Exchange Component
(e) If you fail to return the Service Exchange Component to us within the time specified in clause 15(c) you will be charged: (i) an amount to be determined by us for the non core return; and (ii) the cost of the transport box or frame.
(f) We will determine the core credit value of a Returned Component following inspection and testing. We will endeavour to do this within 14 days after you supply the Returned Component to us.
18. YOUR WARRANTY
You warrant that you have clear title to, and that there are no encumbrances of any kind in respect of, Returned Components and you indemnify us against any losses or liabilities of any kind that we suffer or incur as a result of any breach of this warranty