TERMS & CONDITIONS

TERMS AND CONDITIONS
The following terms and conditions apply to and govern the agreement between the Supplier and the Customer in relation to the supply of Goods and Services. These terms and conditions supersede and replace any previous terms and conditions.

 

1. DEFINITIONS AND INTERPRETATION

1.1 The meaning of the terms used in these terms and conditions are set out below:

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Australian Consumer Law refers to the consumer law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)

Claim a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent

Customer a person whose order or request for the purchase of Goods or Services is accepted by the Supplier

 

Excluded Loss means:
a) loss, or anticipated loss, of use, business, production, profit or revenue, loss of business reputation, business interruption of any nature or loss of opportunity;
b) exemplary or punitive damages; or
c) any loss or damage arising from special circumstances that are outside the ordinary course of things

Goods any goods which are requested by the Customer and agreed to be supplied by the Supplier
GST the goods and services tax levied
pursuant to the A New Tax
System, (Goods and Services Tax)
Act 1999 (Cth)
Term Meaning
Implied Terms any term, condition, warranty, right
or remedy applicable to these
terms that is implied or imposed by
any statute or regulation which
cannot lawfully be excluded,
restricted or modified, which may
include the Australian Consumer
Law and Australian state or
territory legislation
Intellectual
Property Rights
all intellectual property rights of
any kind, in any jurisdiction,
subsisting now or in the future
(including, without limitation,
business, company or trade
names, domain names, patents,
inventions, copyright, design rights,
know-how, trade marks, the right to
sue for passing off and rights to
use, and protect the confidentiality
of, confidential information),
whether registered or unregistered,
and including the rights to apply for
or renew the registration of any
such rights and any rights the
subject of any lapsed application or
registration
Personnel any officer, director, employee,
agent, consultants and
representatives of a party
PPSA the Personal Property Securities
Act 2009 (Cth)
Pre-existing IP
Rights
Intellectual Property Rights in all
materials owned by the Customer
or Supplier independent of these
terms and conditions
Price the amount payable for the Goods
or Services by the Customer
Quote the quote provided to the
Customer for the provision of the
Goods or Services by the Supplier
Related Body
Corporate
has the same meaning as in the
Corporations Act 2001 (Cth)
Restraint Period has the meaning given to that term
in clause 19.2
Scope of Works has the meaning given to that term
in clause 6.1
Services any services which are requested
by the Customer and agreed to be
supplied by the Supplier
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Term Meaning
Supplier EEHA Services T/A Mohr Power
ABN 64152766053or (if applicable)
such other Related Body
Corporate specified in writing as
the supplier of Goods and Services
from time to time
1.2 In these terms and conditions:
(a) words importing the singular include the plural
and vice versa;
(b) a reference to a person is to be construed as a
reference to an individual, body corporate,
unincorporated association, partnership, joint
venture or government body;
(c) a reference to a statute includes a reference to
all enactments amending or consolidating the
statute and to an enactment substituted for the
statute and any subordinate legislation,
including regulations; and
(d) headings are included for convenience only
and do not affect interpretation of these terms
and conditions.
2. GENERAL
2.1 By submitting a request for the Services, the
Customer agrees to comply with these terms and
conditions.
2.2 Unless otherwise agreed in writing by the Supplier,
these terms and conditions apply to the supply of
Goods and Services to the exclusion of all other
terms proposed by the Customer. If the Supplier
agrees (in its sole discretion) to incorporate any terms
and conditions proposed by the Customer to the
supply of Goods and Services (Customer Terms),
these terms and conditions shall apply to the extent of
any inconsistency with the Customer Terms. The
Supplier will only be deemed to have accepted the
Customer Terms where the Supplier has confirmed
the acceptance in writing, signed by a director of the
Supplier.
2.3 No contract for the supply of Goods and Services
shall exist between the Supplier and the Customer
until a Customer's order for Goods and Services has
been accepted by the Supplier (such acceptance of
Customer's orders may be made and communicated
by the Supplier in writing or by overt act of
acceptance on the part of the Supplier). The Supplier
may accept or refuse any order for Goods and
Services in its absolute discretion and may make its
acceptance of an order conditional upon it receiving a
satisfactory credit assessment of the Customer.
2.4 The Supplier may change these terms and conditions
by notice in writing to the Customer. The Customer
agrees that the purchase of any Goods and Services
after the date of a notice of a change will be deemed
to be an acceptance of such changed terms and
conditions.
2.5 These terms and conditions shall be binding on the
Customer's personal representatives, successors and
permitted assigns and shall be for the benefit of the
Supplier’s successors and assigns.
3. PRICE
3.1 Unless otherwise expressly stated, the Price payable
by the Customer under the Quote or these terms and
conditions is exclusive of GST.
3.2 Any variations in the Price as a consequence of
currency fluctuations, taxes, customs duty or other
imports shall be to the Customer's account.
3.3 The Supplier will be entitled to set off against any
money owing to the Customer amounts owed to the
Supplier by the Customer on any account
whatsoever.
4. ACCOUNT TERMS
4.1 The Customer shall pay for all Goods and Services
without any offset or deduction whatsoever, unless
agreed otherwise in writing, by the due date stated in
each invoice issued by the Supplier.
4.2 If GST is imposed on any Goods or Services supplied
by the Supplier, then the Customer must pay to the
Supplier an additional amount equal to the GST
payable on or for such taxable supply. Payment of the
additional amount will be made at the same time as
payment for the Goods and Services is required to be
made in accordance with these terms and conditions,
subject to the provision of a tax invoice.
4.3 If the Customer does not pay the Supplier by the due
date, the Customer shall pay interest on monies due,
charged on a daily rate at 2% per month from the due
date of payment until actual date of payment. If the
Customer has an account with the Supplier, the
Supplier may debit the Customer’s account monthly
or at such times it chooses for such interest.
4.4 In the event the Customer defaults in making
payment and recovery action is undertaken, the
Customer will be responsible for all expenses
incurred by the Supplier in relation to the collection of
the outstanding amount including, but not limited to,
all charges and fees, legal costs on an indemnity
basis, and disbursements.
5. DEFAULT
5.1 If:
(a) there is any default or failure by the Customer
in making due and punctual payment to the
Supplier of any moneys owing by the
Customer;
(b) a liquidator or provisional liquidator is
appointed in respect of the Customer;
(c) a receiver, receiver and manager or controller
is appointed in respect of any assets or group
of assets of the Customer;
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(d) the Customer goes into bankruptcy or is
wound up;
(e) the Customer becomes, admits in writing that
it is, or is declared by a court to be unable to
pay its debts as and when they fall due; or
(f) there is a breach by the Customer of any of
these terms and conditions that has not been
remedied within 7 days of the Supplier
notifying the Customer of the breach,
then all monies payable by the Customer to the
Supplier shall at the Supplier’s election become
immediately due and payable notwithstanding the due
date for payment shall not have expired, and the
Supplier may without prejudice to any other rights
they may have do any or all of the following:
(g) withdraw any credit facilities which may have
been extended to the Customer;
(h) withhold any further deliveries of Goods or the
provision of further Services;
(i) in respect of Goods already delivered, enter
onto the Customer's premises to recover and
resell the Goods for its own benefit; or
(j) recover from the Customer the cost of
materials in connection with the Goods or
Services; and
(k) recover from the Customer all loss of profits
arising from any breach of these terms and
conditions.
6. DELIVERY OF SERVICES
6.1 The Customer agrees to provide the Supplier with all
necessary information and specifications relating to
requirements of the Customer in respect of the
Services ("Scope of Works").
6.2 The nature and extent of the Services will be
determined on the basis of the Scope of Works. If the
Scope of Works is amended, the Supplier will be
entitled to review the Price and the Customer agrees
to pay any additional costs associated with such
amendments as is agreed in writing.
6.3 The Customer must provide the Supplier with
unrestricted access to any relevant work-site in order
for the Supplier to provide the Services. The
Customer must ensure that the work-site in respect of
the Services is:
(a) a safe working environment; and
(b) accessible and prepared for the provision of
Services in accordance with the Scope of
Works.
6.4 The Supplier will be entitled to charge a reasonable
fee for any delays or rescheduling costs if for any
reason access to site is restricted
7. DELIVERY OF GOODS
7.1 Unless otherwise agreed in writing, the Goods will be
delivered or deemed to be delivered at the time the
Supplier provides notice to the Customer that the
Goods are ready for collection at the Supplier’s
premises.
7.2 If the Goods are being delivered to a location
nominated by the Customer, the Goods will be
deemed to have been delivered automatically upon
delivery of the Goods to the nominated delivery
address.
7.3 Unless otherwise agreed, the Customer shall pay to
the Supplier packing (other than the standard packing
of the Supplier), crating and delivery charges in
accordance with the Supplier’s current rates, as at the
date of dispatch. If there is no current rate then the
Supplier may charge a reasonable amount to the
Customer. The Supplier reserves the right to make a
reasonable charge for storage if the Customer has
not collected the Goods within one business day from
the notice provided in accordance with clause 7.1.
7.4 The Supplier shall not be obliged to obtain a signed
receipt or other acknowledgment from any person
upon collection or delivery but if a signed receipt or
other acknowledgment is obtained from someone
believed by the Supplier to be authorised by the
Customer to sign or otherwise collect the Goods on
behalf of the Customer, then such signed receipt or
other acknowledgment shall be conclusive evidence
of the Customer's acceptance of the Goods.
7.5 Any times quoted for delivery are estimates only and
the Supplier shall not be liable to the Customer for
any failure to deliver or for delay in delivery of Goods
whatsoever whether or not beyond the control of the
Supplier.
7.6 The Customer shall not be relieved of any obligation
to accept or pay for Goods by reason of any delay in
delivery.
7.7 The Supplier reserves the right to deliver Goods by
instalments. Failure to deliver any instalment or
deliver any instalment on time shall not entitle the
Customer to repudiate or terminate the contract in
whole or in part.
8. PROPERTY AND RISK
8.1 Unless otherwise agreed in writing between the
Supplier and the Customer, the Goods shall be at the
sole risk of the Customer as soon as they are
delivered or deemed to be delivered in accordance
with clause 7.
8.2 Property in and title to the Goods will not pass to the
Customer until:
(a) in respect of Goods listed on an invoice given
to the Customer, the invoice has been paid for
in full;
(b) the Goods and all other Goods supplied by the
Supplier to the Customer have been paid for in
full; and
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(c) any moneys owing to the Supplier by the
Customer have been paid by the Customer
and received by the Supplier in full (“Debts”).
8.3 Until the Debts have been paid in full:
(a) the Customer will hold the Goods as fiduciary
and bailee for the Supplier and the Customer
must not charge or grant an encumbrance
over the Goods or sell the Goods otherwise
than in accordance with clause 8.3(c);
(b) the Goods must be stored separately and in a
manner enabling them to be identified as
Goods of the Supplier and cross-referenced to
particular invoices and the Customer
acknowledges that if it should process or mix
the Goods with other products or items such
that the Goods are no longer separately
identifiable then the Customer and the
Supplier will be owners in common of the new
product;
(c) if the Customer sells the Goods in the ordinary
course of its business as bailee for the
Supplier:
(i) it will hold the proceeds of sale in a
separate account on trust for the
Supplier and account to the Supplier for
those proceeds; and
(ii) assigns to the Supplier the benefit of
any claim against such third party;
(d) the Supplier may require the Customer to
return the Goods to it on demand; and
(e) the Customer grants the Supplier a licence to
enter any premises of the Customer where the
Goods are stored to inspect or repossess any
Goods supplied to the Customer (whether paid
for or not) without liability for trespass or any
resulting damage.
8.4 The Customer shall insure the Goods against theft or
any damage until such Goods have been paid for or
until they are sold by the Customer (whichever occurs
first) and the Supplier will be entitled to call for details
of the insurance policy. If the Customer does not
insure the Goods or fails to supply details of its
insurance policy, the Customer will reimburse the
Supplier for the cost of any insurance which the
Supplier may reasonably arrange in respect of the
Goods supplied to the Customer.
8.5 For the avoidance of doubt, the Customer agrees that
until property in and title to the Goods passes to the
Customer, the Supplier’s interest in the unpaid Goods
supplied constitutes a Purchase Money Security
Interest (PMSI). The PMSI will continue for any future
Goods coming into existence or for the proceeds from
the sale of the Goods. The Customer agrees to
comply with all obligations set out in clause 20.
8.6 For the purpose of securing payment of the Price and
the performance of the Customer’s obligations under
these terms and conditions, the Customer agrees that
all property of the Customer bailed to or made
available to the Supplier is subject to a general lien
for all charges now due or that may become due to
the Supplier by the Customer on any account
whatsoever.
9. DRAWINGS AND SPECIFICATIONS
9.1 The Customer warrants to the Supplier that all
drawings and specifications and other design
information provided to the Supplier are accurate and
correct in all respects and do not infringe upon the
Intellectual Property Rights of any third party including
any copyright, patents, designs or trademarks of a
third party.
9.2 If the Customer provides any drawings, designs or
specifications in relation to the provision of the Goods
or Services, the Customer:
(a) indemnifies the Supplier against all Claims
associated with any infringement of the
Intellectual Property Rights of third any
person; and
(b) grants the Supplier a non-exclusive,
irrevocable, perpetual, royalty free and
worldwide licence to any Intellectual Property
Rights associated with the provided drawings,
designs or specifications for the purpose of the
supply of the Goods or Services in connection
with these terms and conditions.
10. WARRANTY
10.1 Subject to clause 10.2 the Supplier warrants that all
Goods supplied to the Customer are in accordance
with any relevant specifications contained in the
Quote or otherwise communicated to the Customer
by the Supplier in writing, and all Services are
provided in accordance with the Scope of Works.
10.2 The Customer acknowledges and agrees that it does
not rely on the skill or judgment of the Supplier in
relation to the suitability of any Goods or Services for
a particular purpose. Any advice, recommendation,
information or assistance provided by the Supplier is
provided without any liability by the Supplier
whatsoever.
10.3 If the Customer is a consumer within the meaning of
that term in the Australian Consumer Law, the
Supplier makes each guarantee required as a
provider to a consumer under Part 3-2 of the
Australian Consumer Law but only to the extent
required by the nature of the Goods and Services and
the nature of the Customer.
11. RETURN OF GOODS
11.1 Subject to clause 12 and unless agreed in writing by
the Supplier, the Supplier will not accept the return of
Goods. If the Supplier agrees to accept Goods (at its
absolute discretion) the Customer may be charged to
recover restocking and repackaging costs. The
amount of this charge will be determined by the
Supplier and shall be deducted from the amount of
the credit allowed for the return.
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11.2 All claims for the Supplier’s failure to comply with the
Customer's order (whether due to shortfall, defect,
incorrect delivery or otherwise) must be made by
giving written notice to the Supplier within fourteen
(14) days from the date of delivery. If the Customer
fails to provide such notice, then the Customer shall
be deemed to have accepted the Goods.
12. CLAIMS UPON SUPPLIER
12.1 Subject to clause 10, all conditions, warranties and
undertakings other than Implied Terms are expressly
excluded to the maximum extent permitted by law.
12.2 The Supplier’s liability for breach of clause 10.1 or an
Implied Term is limited at the Supplier’s option in the
event of a minor failure of the Goods or Services, or
the Customer’s option in the event of a major failure
of the Goods or Services, to any one of the following:
(a) the replacement of the Goods or the supply of
equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of providing
replacement Goods or of acquiring equivalent
Goods; or
(d) the payment of the cost of having the Goods
repaired;
(e) the supplying of the Services again; or
(f) the payment of the cost of having the Services
supplied again.
12.3 To the maximum extent permitted by law, the Supplier
will not be liable in any circumstances for:
(a) defects or damage caused in whole or in part
by misuse, abuse, neglect, unsuitable material
with, improper installation, repair or alteration
(other than by the Supplier) or accident of the
Supplier, the Customer or any third party;
(b) any delay, transport, installation, removal,
labour insurance, packing, storage, handling,
demurrage or other charges relating to the
supply of the Goods or Services to the
Customer; or
(c) Excluded Loss.
12.4 Where, in connection with the supply of Goods or
Services, the Supplier’s Personnel are located on the
Customer’s site or another nominated site, the
Customer shall indemnify and keep indemnified the
Supplier from and against all Claims arising out of or
in connection with:
(a) loss of or damage to property of the Customer;
(b) personal injury including death or disease to
any third party (including the Customer’s
Personnel); and
(c) loss of or damage to property of any third party
(including the Customer’s Personnel).
12.5 Without limiting any other provisions of this clause 12,
the maximum aggregate liability of the Supplier to the
Customer for any Claim (or series of connected
Claims) under or in connection with these terms and
conditions howsoever arising shall be limited to the
Price received by the Supplier from the Customer in
the 12 month period immediately preceding the date
of the relevant Claim (or series of connected Claims).
13. INSURANCE
Despite any terms and conditions or any other
requirements or directions of the Customer, the
Supplier is not required to hold:
(a) a professional indemnity insurance policy with
a cap exceeding $1.;
(b) a public liability, product liability or pollution
liability insurance policy with a cap exceeding
$20 million; or
(c) any other kind of insurance policy not referred
to in this clause 13.
14. TRUST AND TRUSTEES
Where the Customer acquires the Goods or Services
as a trustee, the Customer warrants that it has the full
power and authority to enter into these terms and
conditions on behalf of the trust and that it shall be
bound by these terms and conditions both personally
and as trustee, irrespective of whether or not it
discloses to the Supplier that it is a trustee.
15. MINIMUM ORDER PRICE
The Supplier may set a minimum Price for any one
order at its absolute discretion.
16. NOTICE
16.1 All notices given under these terms and conditions
must be in writing and may be delivered in person or
by mail or by the medium specified in the address for
service stated on the order.
16.2 A party may change its particulars for service by
notice in writing to the other parties.
16.3 A notice sent by post will be deemed:
(a) given on the day it is posted; and
(b) received six days after posting.
16.4 A notice sent by email will be deemed received at the
time and on the date that it is sent, unless the sender
receives notification that the delivery of the email was
unsuccessful, in which case the email will not be
deemed to have been received.
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16.5 For the purposes of clause 16.4, ‘delivery’ of an email
means the time that an email reaches the recipient’s
server.
17. CERTIFICATE
A statement in writing signed by the Supplier’s credit
manager stating monies payable by the Customer to
the Supplier shall be prima facie evidence of the
amounts so payable.
18. INTELLECTUAL PROPERTY
18.1 The sale to and purchase by the Customer of any
Goods or Services does not confer on the Customer
any licence to the Intellectual Property Rights of the
Supplier.
18.2 All Pre-existing IP Rights remain the sole property of
the owner.
18.3 The Customer grants the Supplier a non-exclusive,
royalty-free, non-transferable licence to use the Pre-
existing IP Rights owned by it for the sole purpose of
providing the Goods and Services.
19. NON SOLICITATION
19.1 For the maximum enforceable Restraint Period, the
Customer will not (and will procure that its Related
Bodies Corporate and Personnel will not) directly or
indirectly solicit, employ or entice away:
(a) any of the Supplier’s Personnel; or
(b) any person who is first introduced to the
Customer by the Supplier.
19.2 Restraint Period means a period of:
(a) two years, or if that is not enforceable then;
(b) one year, or if that is not enforceable then;
(c) six months,
from the date that the Services under these terms and
conditions were last supplied to the Customer.
19.3 If any period included in the Restraint Period, or any
restriction referred to in this clause or any
combination of these periods and restrictions is held
to be invalid for any reason by a court of competent
jurisdiction:
(a) that invalidity will not prejudice or in any way
affect the validity of any lesser period or
restriction specified or any lesser restraint
imposed by a combination of any of those
periods and restrictions; and
(b) all of those periods, and restrictions and
combinations will bind the Customer to the
extent that no finding of invalidity is so made.
20. PPSA
20.1 All terms defined in the PPSA have the same
meaning where capitalised in these terms and
conditions.
20.2 The Customer agrees to do anything that the Supplier
requires for the purposes of:
(a) ensuring that any Security Interest granted to
the Supplier is enforceable under the PPSA;
(b) enabling the Supplier to gain highest possible
priority for all Security Interests granted by the
Customer; and
(c) enabling the Supplier to exercise rights in
connection with any Security Interest.
20.3 The Customer agrees and acknowledges that:
(a) anything that is required by the Customer to
be done under this clause 20 will be done by
the Customer at its own expense. The
Customer agrees to reimburse the costs of the
Supplier in connection with any action taken
by the Supplier under or in connection with this
clause.
(b) these terms and conditions constitute a
security agreement for the purposes of the
PPSA and that a Security Interest exists in all
Goods previously supplied by the Supplier to
the Customer and their proceeds (if any); in all
future Goods that may be supplied by the
Supplier (and their proceeds) and in all
products into which the Goods are
incorporated, processed or comingled (and
their proceeds);
(c) where the Customer is paid in respect of the
Goods so delivered, the Customer must, as
the Supplier’s fiduciary, keep any such
proceeds in a separate account and account
to the Supplier in respect of those proceeds;
(d) the Customer contracts out of and waives its
rights under the following provisions of the
PPSA, to the extent permitted, sections 95, 96,
117, 118, 121(4), 129, 130, 132(2), 132(3)(d),
132(4), 134(2), 135, 136(3)-(5), 137(2), 138,
142, 143 and the right to receive any notice
under the PPSA (including notice of a
verification statement) unless the notice is
required by the PPSA and cannot be excluded;
(e) until ownership of the Goods passes, the
Customer must not give the Supplier a written
demand or allow any other person to give the
Supplier a written demand requiring the
Supplier to register a financing change
statement under the PPSA or enter into or
allow any other person to enter into the
register of personal property securities a
financing change statement under the PPSA;
(f) it has received value as at the date of first
delivery of the Goods and has not agreed to
postpone the time for attachment of the
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Security Interest to the Supplier under these
terms and conditions;
(g) the Customer irrevocably grants to the
Supplier the right to enter upon the Customer’s
property or premises, without notice, and
without being in any way liable to the
Customer or to any third party, if the Supplier
has cause to exercise any of the Supplier’s
rights under sections 123 and/or 128 of the
PPSA, and the Customer agrees to indemnify
the Supplier from any claims made by any
third party as a result of the Supplier
exercising such right;
(h) pursuant to section 275(6) of the PPSA, the
Customer agrees it will not disclose to an
interested person any of the matters described
in section 275(1) of the PPSA without prior
approval of the Supplier; and
(i) if the Customer defaults in the performance of
any obligation owed to the Supplier, the
Supplier may enforce its Security Interest in
any Goods by exercising all and/or any of its
right under these terms and conditions, or the
PPSA.
20.4 The Customer agrees that where the Supplier has
rights in addition to those under part 4 of the PPSA,
those rights will continue to apply.
21. GENERAL
Variation
21.1 No amendment or variation to these terms and
conditions has force unless it is in writing and signed
by the parties.
Joint and Several
21.2 An obligation of two or more persons under these
terms and conditions binds them jointly and severally
and every expressed or implied agreement or
undertaking by which two or more persons derive any
benefit in terms of these terms and conditions will
take effect for the benefit of those persons jointly and
severally.
Entire Agreement
21.3 These terms and conditions govern the entire
agreement between the parties and supersede all
prior representations, agreements, statements and
understandings between the Customer and the
Supplier.
Governing Laws
21.4 Unless varied by notice in writing by the Supplier,
these terms and conditions shall be governed by and
construed in accordance with the laws of Queensland
and the parties submit to the exclusive jurisdiction of
the courts in Queensland.
21.5 The parties agree that proceedings may be
commenced in any Court in Queensland and consent
to that Court having jurisdiction by virtue of clause
21.4 even though the Court would not otherwise have
such jurisdiction without this consent.
Waiver
21.6 Any failure by the Supplier to insist upon strict
performance of any terms and/or conditions herein
shall not be deemed a waiver thereof of any right that
the Supplier may have and shall not be deemed to be
a waiver of any subsequent breach of any terms
and/or conditions.
Severance
21.7 In the event that the whole or any part or parts of any
provisions in these terms and conditions should be
held to be void or unenforceable in whole or in part
such provision or part thereof shall to that extent be
severed from these terms and conditions but the
validity and enforceability of the remainder of these
terms and conditions shall not be affected.
TJJ10263137 3456-5421-4168