Eneraque AU Purchase Order Terms and Conditions
1. Formation of Contract
‘ENERAQUE' means Eneraque Pty Ltd ACN: 605 908 549 (ABN: 81 605 908 549)
This offer is strictly limited to the terms and conditions included in this Agreement. The Supplier will be deemed to have accepted this Agreement, and this will be evidenced, by the Supplier commencing work or providing the Deliverables contained in this Agreement.
The Purchase Order constitutes the entire agreement between the parties in relation to its subject matter and supersedes all tendered offers and prior representations, communications, agreements, statements and understandings, whether oral or in writing.
In this Agreement, unless the contrary intention appears:
Acceptance means the Deliverables are found to comply in all respects with this Agreement.
Agreement means these Purchase Order terms and condition, and where applicable the Special Terms and Conditions and any documents expressly incorporated as part of this Agreement.
Background IPmeans Intellectual Property that exists at the Effective Date or is subsequently brought into existence other than as a result of the performance of this Agreement and which is necessarily related to the Deliverables.
Confidential Information means any Information provided by either party to the other that is:
a) By its nature confidential; or
b) The receiving party knows or ought to know is confidential, but does not include information which:
i. Is or becomes public knowledge other than by breach of this Agreement;
ii. Is in the possession of a party without restriction in relation to disclosure before the date of the receipt;
iii. Is strictly and necessarily required to be disclosed for the performance of this Agreement; in connection with legal proceedings related to this Agreement; or given with the written consent of Energen; or
iv. Has been independently developed or acquired without an obligation of confidentiality by the receiving party.
Deliverables means all the goods, supplies or services to be provided under this Agreement, including delivery of documents, equipment, reports, Intellectual Property, Technical Data, plans, charts, drawings, calculations, tables, schedules, models, software goods, information and data stored by any means as detailed in the Purchase Order.
Delivery means the delivery of the Deliverables to the Delivery Location by the Delivery Date.
Delivery Date means the date specified on the Purchase Order under the ‘Delivery Date’.
Delivery Location means the location specified on the Purchase Order under the field ‘Deliver To’.
Effective Date means the date that the Purchase Order is issued to the Supplier unless otherwise specified on the Purchase Order.
Firm means the price is unalterable in all respects.
Foreground IP means all Intellectual Property that is created or otherwise brought into existence for this Agreement.
GST Act means A New Tax System (Goods and Services Tax) Act 1999.
GST means as defined in the GST Act.
Information means any and all technical and non-technical information provided by either party to the other, including but not limited to, proprietary information including ideas, techniques, sketches, drawings, works of authorship, models, processes, apparatuses equipment, algorithms, software programs, software source documents and formulae related to the current, future and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information the disclosing party provides regarding third parties.
Intellectual Property means all copyright (including moral rights), neighboring rights and all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered and unregistered designs, Confidential Information (including trade secrets and know-how) and circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognized in domestic law anywhere in the world.
Purchase Order means the written order, placed with the Supplier by Eneraque for the provision of the Deliverables in accordance with this Agreement.
Purchase Order Terms and Conditions means these purchase order terms and conditions.
Eneraque Pty Ltd means Eneraque.
Special Terms and Conditions means any terms and conditions in addition to the Purchase Order Terms and Conditions which are annexed to the Purchase Order Terms and Conditions or are included on the face of the Purchase Order.
Supplier means the company named in this Agreement that will be responsible for providing the Deliverables.
Third Party IP means Intellectual Property that is owned by a party other than Eneraque or the Supplier and Eneraque or the Supplier and which is necessarily related to the Deliverables.
3. Precedence of Documents
In the event of inconsistency between the provisions of this Agreement, the following order of precedence will apply:
a. Where applicable, Special Terms and Conditions;
b. The Purchase Order Terms and Conditions; and
c. Any document incorporated by express reference as part of this Agreement.
The Supplier will deliver the Deliverables to the Delivery Location by the Delivery Date DDP (Incoterms 2010) In the event of any anticipated or actual delay, the Supplier will immediately notify Eneraque in writing of the reasons for the delay and the actions being taken to overcome or minimize the delay. Deliverables will be delivered with detailed identification documentation on each single package, and include a certificate of conformance/ release certificate detailing Agreement number, Purchase Order number, part number and description, serial number and quantity delivered. Where applicable, the Supplier will provide a copy of the Manufacturer’s certificate of conformance along with the Supplier’s release certificate.
1. Price, Payment & Taxes
The Purchase Order price is firm and unless the Purchase Order specifies otherwise, will include customs duty, packaging, marking, handling, insurance,
freight and delivery, all taxes include Australian Goods and Services Tax (GST), levies, and any other applicable duties costs and charges.
No alterations will be accepted unless by prior written agreement with Eneraque’s Representative.
All Deliverables under this Purchase Order must be invoiced on or after Delivery. Subject to the satisfactory performance by the Supplier in accordance with the provisions of this Agreement, Eneraque will pay the Supplier within forty five (45) days after the end of the month in which a correctly rendered invoice is received. A correctly rendered invoice is an invoice which complies with the GST Act, contains the Purchase Order number and the Agreement number, certificate of conformance/release certificate number, description and quantities of Deliverables delivered.
Eneraque will have no liability for any other expenses or costs incurred by the Supplier.
The Supplier will promptly repay to Eneraque any amounts paid in excess of amounts due to the Supplier.
The Deliverables will comply with the latest revision of the standards or codes issued by Standards Australia, or equivalent.
3. Inspection and Test
Eneraque will have the right to inspect and test the Deliverables including the right to reject and return the Deliverables at the Supplier’s expense
if, in the opinions of Eneraque, the Deliverables do not comply in any respect whatsoever with the Agreement. Any inspection or test carried
out pursuant to this clause does not relieve the Supplier from any of its own responsibilities and obligations under this Agreement unless
otherwise stated by Eneraque.
During the term of this Purchase Order, the Supplier will permit representatives of Eneraque or any person authorized by Eneraque access to its premises, and access to any of its records or accounts in connection with the provision of the Deliverables.
4. Risk and Title
Risk in the Deliverables will pass from the Supplier to Eneraque on the later Delivery of or Acceptance.
Ownership of, and unencumbered title in, the Deliverables or any part of it will pass to Eneraque upon payment. Where payment is made in installments ownership will pass in proportion to the percentage paid.
Where Eneraque has supplied materials or equipment in connection with the Deliverables, the risk for loss of or damage to such supplied materials will transfer to the Supplier when delivered into the Suppliers care custody an control and remain there until returned to Eneraque. The title in Eneraque supplied material or equipment remains vested in Eneraque at all times and the Supplier must not under any circumstances encumber or otherwise make such material or equipment the subject of any lien or charge. The Supplier must clearly label any supplied materials or equipment as property of Eneraque. The Supplier will return such material or equipment to the Purchase in the event of any termination under clause 9 or 10.
a. Assigns to Eneraque immediately upon its creation, the rights in all Foreground IP created by the Supplier subcontractor in connection with the provision of the Deliverables under this Agreement;
b. Grants to Eneraque a perpetual, royalty free, irrevocable, world-wide, non-exclusive license in respect of all Background IP, including the right to sub-licence, to use, modify, support, develop and maintain the Deliverables for Eneraque’s purposes; and
c. Will use its best endeavours to ensure that Eneraque is granted a licence to exercise all Third Party IP on the best available commercial terms.
The parties will keep confidential and secure, and not misuse, any Confidential Information. The parties will obtain the prior written consent of the disclosing party where Confidential Information is to be disclosed for any reason other than where such disclosure is required for the purposes of providing the Deliverables or by law. The parties will return or certify as to the destruction of Confidential Information at the earlier of a request by the disclosing party of the expiration or termination of the Agreement.
The Supplier warrants that:
a. It is appropriately qualified and experienced to provide the Deliverables;
b. It has, (together with its subcontractors) sufficient numbers of properly qualified and experienced personnel at its disposal to perform in accordance with this Agreement; and’
c. It is properly licensed, equipped, organized and financed to comply with all of its obligations under this Agreement.
The Supplier further warrants that no literary or other works (including computer programs, diagrams, flow charts or other work) employed or created
by the Supplier in connection with the provision of the Deliverables (the Supplier’s Intellectual Property infringes any Intellectual Property
right or other right or property belonging to or benefiting any third party.
The Supplier acknowledges that Eneraque enters into this Agreement in reliance on the Supplier’s warranties in this Clause 6, and the Supplier’s skill and judgment to perform in accordance with the provisions of this Agreement and provide the Deliverables.
The Supplier warrants the Deliverables will:
a. Conform to the description, drawings, specifications and these Agreement terms and conditions (including any special conditions); and
b. Be fit for the intended use and purpose; and
c. For the specified warranty periods, or if there is not a specified warranty period, then for 12 months from Acceptance, be free from any defect in design, materials and workmanship.
d. During the warranty period, the Supplier will at its own expense (including the cost of repackaging and return transport) repair or replace the Deliverables that are in breach of this Clause 10.
he Supplier will indemnify and hold harmless Eneraque, its officers, employees and agents against any liability, loss, damages, claim, suit, action, demand, expense or proceeding of any nature in respect of:
a. Loss of, or damage to, property (including Eneraque’s property);
b. Personal injury illness or death;
c. Claims by any third party, including in respect of Intellectual Property and Confidential Information; and
d. Costs and expenses including the costs of defending or settling any claim;
e. Arising out of or as a consequence of any work under this Agreement by the Supplier, its employees, officers, agents, contractors and suppliers and/or subcontractors.
In addition to any insurance which the Supplier is by law obliged to effect, the Supplier will procure and maintain at its own expense, with a reputable insurance company the following policies of insurance:
a. Workers compensation as required by law including a principal’s indemnity extension where any work is to be undertaken in the Northern Territory or Western Australia;
b. Property insurance covering the full replacement value of Eneraque’s materials and equipment in the name of Eneraque; and
c. Public liability for an amount of not less than $20,000,000
d. Product liability insurance for an amount not less than $20,000,00; and
On written request by Eneraque, the Supplier must provide certificates of currency for insurance retained in accordance with this Agreement. If certificates of currency are not produced within seven (7) days of receipt of a written request Eneraque may:
i. Withhold payment to the Supplier; or
ii. Procure the appropriate insurance policies on behalf of the Supplier, the cost of any such insurance will be a debt due from the Supplier to Eneraque.
9. Termination for Default
If the Supplier fails to comply with the provisions of the Purchase Order or commits a material breach of this Agreement and fails to remedy a
material breach within thirty (30) days of receiving written notice from Eneraque that it requires a material breach to be remedied Eneraque
may terminate this Agreement by providing thirty (30) days written notice.
Eneraque may terminate this Agreement immediately by providing written notice to the Supplier where the Supplier becomes insolvent or bankrupt or a receiver of its business or assets is appointed, or goes into liquidation or takes or has instituted against it any action which may result in bankruptcy or liquidation.
If Eneraque terminates in accordance with this clause, the Supplier will not be obliged to make any payment therefore or in respect of such termination, and will recover from the Supplier, Eneraque’s costs and damages.
10. Termination for Convenience
Eneraque, in addition to any other rights it may have under this Agreement, is entitled at any time and for any reason to terminate this Agreement, by notifying the Supplier I writing that this Agreement, or a specified part thereof, will terminated on the date specified in such notice, and in that event, the Supplier will comply with such directions that Eneraque may give to the Supplier in relation to subsequent performance of this part of the Agreement. Upon receipt of notice of termination in whole or part the Supplier will:
i. Do everything possible to mitigate all losses, costs (including the costs of compliance with any such direction), and expenses arising in consequence of the termination of this Agreement or part thereof; and
ii. Terminate all affected subcontracts or supply agreements.
If requested in writing by the Supplier within thirty (30) days after the service of a notice, Eneraque will pay to the Supplier all moneys due and not previously paid to the Supplier for the Deliverables completed in accordance with this Agreement and for work thereafter completed as specified in the notice. The total sum to be paid to the Supplier will not include any consideration for loss of anticipated profits for terminated Deliverables or work, and the Supplier hereby agrees to waive all claims in relation thereto. In no case will the amount payable by Eneraque for the terminated work exceed the price that would have been payable if the work had been completed.
11. Workplace Health and Safety
The Supplier must:
a. Ensure all personnel complete an Eneraque safety induction prior to commencement of activities on Eneraque owned or controlled premises;
b. Comply with the statutory obligations placed upon it under any applicable workplace health and safety legislation in each State or Territory and any applicable regulations made under that legislation;
c. Comply with any applicable advisory standard, industry codes of practice or Australian Standards; and
d. Comply with any directions given by Eneraque with respect to workplace health and safety, security or Environmental regulatory or policy requirements;
which apply to the provision of the Deliverables under this Agreement.
The Supplier must provide to Eneraque a report whenever required by Eneraque which:
a. Confirms the Supplier is compliant with workplace health and safety legislation as it applies in each State or Territory;
b. lists any hazards and risks associated with the activities to be conducted
c. lists specific control measures that will be used to mitigate any risks associated with the activities
d. details the proposed method for conducting the activity, including how safety controls will be implemented;
e. details qualifications of persons conducting the activities;
f. Details the procedure for first aid and injury management while conducting the activities.
Any incident which has the potential to cause, or actually causes, an accident, injury or illness to the Supplier or Supplier’s personnel pursuant
to work being performed under this Agreement must be reported to Eneraque within one (1) hour of the occurrence unless that is impracticable,
in which case it must be reported as soon as practically possible.
A written report detailing the events surrounding the accident and/or incident will be submitted by the Supplier to Eneraque’s Representative within twenty-four (24) hours. The Supplier will provide any additional information which Eneraque may reasonably require.
The reporting obligations set out in this Clause 11 are in addition to any obligations to report provided for in applicable workplace health and safety legislation in any State or Territory.
12. Entire Agreement
Notwithstanding that the Supplier has provided Eneraque with the Supplier’s terms and conditions, this Agreement constitutes the entire Agreement
between the parties ad supersedes all communications, negotiations, arrangements and agreements, whether oral or in writing, between the parties
with respect to the subject matter of this Agreement.
No amendment or modification to this Agreement will bind either party unless it is in writing and is signed by Eneraque’s Representative and an authorized representative of the Supplier.
If any part of the Purchase Order is or becomes illegal, invalid or unenforceable, the legality, validity or enforceability of the remainder of the Purchase order will not be affected and the Purchase order will be read as if that part had been severed.
14. Governing Law
This Agreement is governed by and is construed in accordance with the laws of the State of Queensland Australia.
Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland and courts entitled to hear appeals from these courts.
The United Nations Convention on Contracts for the International Sale of Goods (or its successor) will not apply to these Agreement Terms and Conditions.
Eneraque may set-off any amount owing by Eneraque to the Supplier (whether liquidated or unliquidated. All rights, including implied rights, of the Supplier to set-off against any amounts owing by Eneraque are excluded.
The clauses of the Purchase Order intended to survive, include, but are not limited to, confidentiality, intellectual property, warranties, indemnities, and any rights arising on termination or expiration, will all survive the termination or expiration of the Purchase Order.
Any failure of Eneraque to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Eneraque to the Supplier will
not be construed as a waiver of Eneraque’s rights under this Agreement.
The Delivery, receipt or Acceptance of any Deliverables will not be deemed a waiver of any rights of Eneraque for any prior failure by the Supplier to comply with any of the provisions of this Agreement.
18. Notices Provided Pursuant to Purchase Order
All notices provided by either party to the terms of this Purchase Order will be in writing and delivered promptly to the parties’ nominated representatives set out in the Purchase Order and will be deemed to have been given:
a. In the case of hand delivery, upon delivery;
b. In the case of prepaid post, three days after dispatch; and
c. In the case of facsimile, upon completion of the transmission.
Notices required pursuant to this Purchase Order may not be sent by electronic mail.
19. Assignment and Subcontracts
The Supplier must not, without the prior consent in writing of Eneraque, assign, novate or subcontract in part or in whole, its rights or obligations under the Purchase Order.
20. Certification and Standards
The supplier will provide evidence of ISO 9001 quality certification or equivalent, evidence of ISO 14001 environmental certification or equivalent, and any relevant Australian Safety standards upon request of Eneraque.
Eneraque Terms and Conditions of Sale
'Agreement' has the meaning as set out in clause 2.1of these terms and conditions of sale
‘ENERAQUE' means Eneraque Pty Ltd ACN: 605 908 549 (ABN: 81 605 908 549)
'Authorities' mean any Government or regulatory body, instrumentality, minister, agency, court, tribunal or other similar Authority.
'Consequential Loss' means any loss of anticipated or actual revenue or profits, loss of use of equipment, business interruption or a failure to realise anticipated savings, loss of data, downtime costs or wasted overheads, loss of goodwill or business opportunity, punitive or exemplary damages and any special or indirect loss or damage of any nature whatsoever.
The 'Customer' is the party purchasing the Equipment.
‘Days’ referred to in these terms and conditions mean calendar days.
The 'Equipment', the 'Price', the 'Services' and the 'Delivery Date' are as set out in ENERAQUE's quotation.
'GST' means goods and services tax payable under Australian law in respect of the sale and, if applicable, installation, of the Equipment.
1.1 If ENERAQUE has not provided a quotation to the Customer for the sale of the Equipment, a reference to ENERAQUE's quotation will be deemed to be a reference to the offer (written or verbal) made by ENERAQUE to sell the Equipment to the Customer.
1.2 If an Incoterm is expressed to apply to the transportation and delivery of the Equipment, the Incoterm will be defined and interpreted in accordance with Incoterms 2010.
2.1 These terms and conditions of sale and ENERAQUE's quotation constitute the entire agreement between ENERAQUE and the Customer and there shall be no additional terms or documents and no waiver of terms unless both parties agree otherwise in writing.
2.2 If any term or condition is declared or becomes unenforceable, invalid or illegal for any reason, the remaining terms and conditions shall remain in full force and effect.
3.1 Unless specified to the contrary, any prices quoted are in Australian dollars and are exclusive of any taxes, duties or the like. Unless otherwise stated, the Price does not include the cost of loading, transportation and transit insurance of the Equipment, which shall be the responsibility of the Customer.
3.2 If the Price is expressed to be exclusive of GST, the Customer will pay, in addition to the Price, the amount of GST which is payable to ENERAQUE in respect of the Equipment.
4.1 The Customer will pay ENERAQUE the invoiced price of the Services and Equipment strictly in accordance with the terms stated in ENERAQUE's quotation (unless clause 4.2prevails). If the Customer fails to pay ENERAQUE in accordance with these terms, ENERAQUE can suspend further deliveries of any Services or Equipment to the Customer, exercise rights under clause 10 or terminate this or any other agreement with the Customer and the Customer shall have no claim whatsoever against ENERAQUE in the event of ENERAQUE exercising any rights under this clause 4.1.
4.2 Equipment specified in the quotation as 'Capital Equipment', if it is so further specified in the quotation, may be subject to an initial deposit of the amount specified, payable on receipt of the purchase order. On completion of the construction or assembly of the Capital Equipment, the balance outstanding is due prior to the Equipment leaving ENERAQUE's premises.
4.3 The Customer acknowledges that it is liable to pay any costs incurred by ENERAQUE in recovering money owed by the Customer to ENERAQUE. Such costs include but are not limited to, fees charged by debt collection agencies and solicitor / client costs.
5 INTEREST ON UNPAID AMOUNTS
5.1 The Customer will pay ENERAQUE interest, calculated at a rate per annum of 3% above the then current overdraft index rate of ENERAQUE's banker, on any amounts, which are not paid within the periods described in this Agreement.
6.1 If delivery is delayed as a result of circumstances which are outside of ENERAQUE's reasonable control, the Delivery Date will be extended for the period of the delay.
6.2 The Customer must accept and pay for any Equipment supplied by ENERAQUE notwithstanding minor inaccuracies in the precise quantity, quality, size, weight, functionality or description of the Equipment.
6.3 Except if the Equipment is to be installed by ENERAQUE, the Equipment is at the risk of the Customer upon completion of loading of the Equipment for transportation from ENERAQUE's premises.
7 RETURN AND REFUND
8.1 The Customer acknowledges that:
(a) apart from warranties that ENERAQUE is obliged by statute to provide to the Customer or warranties referred to in this clause 8.1, ENERAQUE provides no other warranty in respect of the Equipment;
(b) it has not relied on any representation or statement made by ENERAQUE, or its officers, employees or agents in respect of the Equipment, or concerning the performance of the Agreement, which is not specifically and expressly set out in this Agreement;
(c) ENERAQUE warrants that in respect of the Equipment it has supplied and installed for the Customer under this Agreement, the Equipment will be free from any defect due solely to faulty workmanship and materials as follows:
(i) For plant design, installation, construction and maintenance Services only (as applicable):
A. Eneraque warrants that the Goods and/ or Services described at Clause 8.2 will be free from any defect due solely to faulty workmanship and materials for a period of:
(a) A period of 14 months after delivery;
(b) 12 months commencing on the date upon which installation of the Equipment was completed;
(c) 4,000 hours of operation from the date of commissioning; or
(d) the warranty period provided by a third party manufacturer,
whichever expires soonest.
8.2 For the purpose of clause 8.2, Goods and Services may include but are not limited to, the following:
(a) Gas Generators;
(b) Landfill Gas Power;
(c) Biogas Generators;
(f) Gas pumping;
(g) gas compression;
(h) gas conditioning;
(i) gas drainage;
(j) microturbines; and
8.3 For lighting towers/generators/pumps/load-banks/ maintenance only (as applicable):
(a) Eneraque warrants that the Goods and/ or Services described at Clause 8.3 will be free from any defect due solely to faulty workmanship and materials for a period of:
(i) 18 months after delivery; or
(ii) 12 months commencing on the date upon which installation of the Equipment was completed; or
(iii) 2000 hours from date of commissioning; or
(iv) whatever the Manufacturer’s warranty states is the soonest.
8.4 To the extent permitted by law, all other warranties and conditions (statutory or otherwise, express or implied) and all other obligations or liabilities on Eneraque's part are hereby excluded.
8.5 The warranty provided by ENERAQUE in clauses 8.1(c), 8.2 and 8.3 is subject to the following terms and conditions:
(a) ENERAQUE's liability to the Customer in respect of the warranty is limited to:
(i) replacing or repairing (at the absolute discretion of ENERAQUE), Equipment which is defective;
(ii) replacing any part or parts with (at the absolute discretion of ENERAQUE), a new part or a refurbished part of equivalent or better quality (taking into account the period of use prior to replacement and the expected life span) to the part or parts being replaced;
(iii) replacing or repairing, the defective Equipment at ENERAQUE's place of business, where the transport charges for both forwarding and return are pre-paid by the Customer; and
(iv) (at the absolute discretion of ENERAQUE) replacing or repairing the defective Equipment at the site where the Equipment is installed if the Customer and ENERAQUE have agreed to reimburse ENERAQUE's costs to do so (including but not limited to transportation, accommodation and out of office costs) but excluding the costs of complying with the warranty, had the work under the warranty been done at ENERAQUE's place of business;
(v) without limiting the effect of clause 8.5(i), ENERAQUE does not assume any liability for:
A. any costs of work performed, expenses incurred or parts purchased by a person unless those costs were expressly authorised by ENERAQUE in writing;
B. defects in any parts or equipment forming part of the Equipment which were not manufactured by ENERAQUE;
C. loss or damage to the Equipment due to accident, misuse or due to the Customer's negligence;
D. fair wear and tear of the Equipment and normal maintenance service and damage resulting from such wear and tear or maintenance;
E. failure of the Equipment to comply with any specification or requirement of the Customer unless ENERAQUE is or was contractually required to ensure compliance with the specification or requirement;
F. the replacement of consumables such as seals, filters, hoses, fittings, washers and the like expected to be used and replaced during the normal life of the Equipment;
G. insurance for, or loss or damage to the Equipment whilst in transit; or
H. compensation for any loss or damage sustained by the Customer howsoever arising, such as loss of time to the Customer while the Equipment is out of commission, loss of profit, increased operating costs or Consequential Loss;
I. at ENERAQUE's request, the Customer must provide full operational and service records for the Equipment the subject of the warranty claim. A failure to provide sufficient records may, at the absolute discretion of ENERAQUE, void the warranty to the extent of the insufficiency and ENERAQUE shall have no obligations to the extent that the warranty is then void;
this warranty will have no effect and shall not apply if:
(a) the Equipment has not been stored, installed, used and maintained properly and carefully in accordance with any recommendations of ENERAQUE, or where there are no such recommendations, in accordance with good industry practice;
(b) the Equipment has been used after the defect has been, or ought reasonably to have been, discovered by the Customer;
(c) the Equipment has, without ENERAQUE's prior written consent, been serviced, altered, added to or repaired by any person other than an authorised representative of ENERAQUE; or
(d) the Equipment has not been paid for in full in accordance with the Agreement;
(e) under no circumstances and in no conditions shall ENERAQUE's liability, whether in respect of one claim or in the aggregate, arising out of this warranty or otherwise, exceed the Price for the Equipment from which the liability arises nor shall the Customer be entitled to withhold, set off or otherwise retain any moneys owing to ENERAQUE on the basis of this warranty; and
(f) the Customer accepts that the terms and conditions of this warranty apply as and from when an order for Equipment is placed with ENERAQUE.
8.6 No variation or extension of the conditions or terms of this warranty will be effective unless it is in writing and signed by Eneraque.
Terms of Warranty:
(a) at the absolute discretion of the Eneraque, replacing or repairing the defective Goods at the site where the Goods are installed where, the Purchaser and Eneraque have agreed Eneraque's costs to do so (including but not limited to transportation, accommodation and out of office costs) but excluding the costs of complying with the warranty, had the work under the warranty been done at Eneraque's place of business; and
(b) where the Purchaser has additional rights under a law in effect in the jurisdiction where the warranty applies then, to the maximum extent permitted by that law, Eneraque's warranty shall be limited as set out in (a) to (d) as set out above.
(c) any costs of work performed, expenses incurred or parts purchased by a person unless those costs were expressly authorised by Eneraque in writing;
(d) defects in any parts or equipment forming part of the Goods which were not manufactured by Eneraque;
(e) loss or damage to the Goods due to accident, misuse or due to the Purchaser's negligence, including but not limited to poor building or site construction, excessive vibration, use of unsuitable utilities, chemical, electro-chemical or electric influences and exposure to extreme climatic conditions;
(f) a failure to make the Goods available to Eneraque for replacement or repair within a reasonable period after the Purchaser became aware of the defects;
8.7 Under no circumstances and in no conditions shall Eneraque's liability, whether in respect of one claim or in the aggregate, arising out of this warranty or otherwise, exceed the contract purchase price for the Goods from which the liability arise nor shall the Purchaser be entitled to withhold, set off or otherwise retain any moneys owing to Eneraque on the basis of this warranty.
8.8 Replaced or exchanged Goods or components will, at absolute the discretion of Eneraque, become the property of Eneraque, however if Eneraque does not elect to take ownership of the replaced or exchanged Goods, then they will remain the property of the Purchaser and the Purchaser will be responsible for the costs of transport, storage and/or disposal of those Goods.
8.9 Eneraque acknowledges that the Purchaser may provide its own warranty conditions of the Purchaser for products that the Purchaser assembles, remanufactures, reconditions or rebuilds that include or incorporate the Goods. Notwithstanding any term of such a warranty offered by the Purchaser, the liability of Eneraque to the Purchaser in relation to any claims of a customer of the Purchaser, shall be limited to the obligations of Eneraque towards the Purchaser under this warranty and Purchaser indemnifies and holds Eneraque harmless against any claim for loss or damage in excess of the warranties provided by Eneraque to the Purchaser herein, howsoever arising, made by a customer of the Purchaser, with respect to products the Purchaser, assembles, remanufactures, reconditions or rebuilds which incorporate the Goods.
8.10 This warranty is not assignable without the prior written consent of Eneraque.
8.11 The Purchaser accepts that the terms and conditions of this warranty apply as and from when an order for Goods is placed with Eneraque.
8.12 The terms of this warranty set out Eneraque’s only obligations with respect to warranting the Goods, save and except where there are specific terms in the Contract for the supply of the Goods and does not imply any particular warranty of merchantability or fitness for particular purposes.
8.13 The parties agree and acknowledge that any action arising under or in relation to this warranty, whether based on breach of contract, tort or any other basis, must be commenced within the period of the warranty set out in clause 1 or it shall be barred.
8.14 Where Eneraque provides Goods manufactured by a third party which are provided with a manufacturer’s warranty by the third party, Eneraque has no liability under such a warranty nor shall Eneraque have a greater liability than already provided by this warranty with respect to Goods as a consequence of such a manufacturer’s warranty and all claims by the purchaser under such manufacturers warranties must be made by the Purchaser against the actual manufacturer and not against Eneraque.
9.1 The Customer indemnifies ENERAQUE against all claims, actions, proceedings, liabilities, expenses (including legal costs), losses or damages including, without limitation, claims by way of subrogation by any insurer:
(a) for personal injury, death or property damage arising out of or in connection with the negligent acts or omissions of the Customer in the handling, use and/or sale of the Equipment;
(b) for a breach by the Customer of any patent, registered design, trademark or copyright concerning the Equipment; and
(c) due to any other breach of this Agreement by the Customer.
10 DAMAGES AND LOSS OF EQUIPMENT
10.1 ENERAQUE will not be liable for Equipment lost or damaged while the Equipment is in the possession of any carrier nominated by the Customer. Any damage to Equipment delivered by ENERAQUE or its appointed carrier must be notified to ENERAQUE within 48 hours of receipt. The Equipment shall not be used or disposed of, and must be kept separate, secure and in good condition until a representative of ENERAQUE has inspected the Equipment.
10.2 Where ENERAQUE is responsible for transportation of the Equipment, non‑delivery of Equipment shall be notified to ENERAQUE within 3 days of the Delivery Date.
10.3 ENERAQUE will not be liable to the Customer for any Consequential Loss suffered by the Customer howsoever arising (including negligence by ENERAQUE or any of its officers, employees or agents).
11.1 The Equipment remains the property of ENERAQUE, as legal and equitable owner, and the Customer shall hold the Equipment as the bailee of ENERAQUE, until the Customer has paid all amounts payable by the Customer to ENERAQUE in connection with this Agreement.
11.2 If at any time moneys are due and payable by the Customer to ENERAQUE, ENERAQUE may repossess the Equipment and for that purpose the Customer irrevocably grants ENERAQUE, its officers, employees and agents, leave and license to enter into and upon any building occupied by the Customer (without notice to the Customer) where the Equipment may be or is supposed to be, carry out a stocktake and remove and take possession of the Equipment without incurring any liability to the Customer or anyone claiming under the Customer for so doing. The Customer will be responsible for the reasonable charges and expenses incurred by ENERAQUE in relation to repossession of the Equipment. Upon repossession of the Equipment, ENERAQUE may elect to credit to the Customer any payment or part payment, which may have been made with respect to the Equipment less any costs, charges and expenses associated with repossession of the Equipment.
11.3 After delivery of the Equipment and until the Customer has paid ENERAQUE all amounts due and payable under this Agreement, the Equipment delivered is at the Customer's risk and the Customer must insure the Equipment for its full replacement value and store the Equipment to avoid any damage to the Equipment. The Customer indemnifies ENERAQUE against any loss or damage to the Equipment after delivery and until such time as ENERAQUE has been paid all amounts owing under this Agreement.
12 ENFORCEMENT UNDER THE PPSA
12.1 In this clause 12.1 'PPSA' means the Personal Property Securities Act 2009 (Cth). Where, pursuant to this Agreement, Equipment remains the property of ENERAQUE after the Equipment has left ENERAQUE's premises, the following provisions apply if this Agreement or any bailment of Equipment contemplated by this Agreement, is, or becomes a security interest under the PPSA:
(a) the Customer must do anything (including amending this Agreement or executing a further agreement or document) that in ENERAQUE's opinion is necessary for the purposes of:
(b) ensuring that ENERAQUE's security interest is enforceable, perfected and otherwise effective;
(c) enabling ENERAQUE to apply for any registration, or give any notification in connection with the security interest so that it has the priority required by ENERAQUE; and
(d) enabling ENERAQUE to exercise all of its rights or powers in connection with the Equipment;
(e) without limiting any other provisions in this Agreement, the Customer waives its right to receive any verification statement (or notice of any verification statement) in respect of any financing statement or financing change statement relating to this Agreement or any transaction contemplated by this Agreement; and
(f) pursuant to section 115 of the PPSA, ENERAQUE and the Customer both agree to contract out of the following enforcement provisions in the PPSA:
(g) section 95 (notice of removal of accession), to the extent that it requires ENERAQUE to give notice to the Customer;
(i) section 121(4) (enforcement of liquid assets – notice to the Customer);
(ii) section 125 (obligation to dispose of or retain collateral);
(iii) section 130 (notice of disposal), to the extent that it requires ENERAQUE to give a notice to the Customer;
(iv) section 132(3)(d) (contents of statement of account after disposal);
(v) section 132(4) (statement of account if no disposal);
(vi) section 135 (notice of retention);
(vii) section 142 (redemption of collateral);
(viii) section 143 (reinstatement of security agreement); and
(h) any other provisions of the PPSA notified to the Customer by ENERAQUE after the date of this Agreement.
13.1 The Price will be adjusted to take into account variations in the cost to ENERAQUE of supplying (and transporting and installing, if applicable) the Equipment arising from any of the following causes:
(a) alterations or adjustments to the Equipment requested by the Customer;
(b) delays in manufacture or delivery of the Equipment as the result of instructions or lack of instructions from the Customer or other circumstances beyond ENERAQUE's control;
(c) variations in the amount of statutory or government charges or fees;
(d) labour difficulties, strikes, block-outs, war (whether declared, threatened or anticipated) or the outbreak of hostilities;
(e) any variation of exchange rates relevant to the calculation of the Price and which occur after the date of ENERAQUE's quotation; and
(f) any variation, at the request or direction of the Customer, to the agreed terms for installation under clause 16 of this Agreement.
14.1 If the Customer:
(a) fails to make any payment as and when due under this Agreement;
(b) commits any breach of any of the Customer's obligations under this Agreement;
(c) commits an act of bankruptcy or is wound up; or
(d) has a receiver and manager appointed over any of its assets,
(e) ENERAQUE may immediately terminate this Agreement without prejudice to any other rights it may possess.
14.2 Without prejudice to any other rights it may possess, if ENERAQUE terminates this Agreement under clause 14.1or the Customer terminates the Agreement, the following charges will be payable by the Customer on termination:
(a) if termination occurs less than 7 days after the receipt of the Customer's purchase order (Effective Date):
(b) 15% of the Price; or
(c) outlaid expenses of sub-suppliers orders,
whichever is higher;
(d) if termination occurs between 7 and 28 days after the Effective Date: then 75% of the Price;
(e) if termination occurs after 28 days after the Effective Date: 100% of the Price; and
(f) notwithstanding clauses 14.2(a)to 14.2(c), if termination occurs after the date of notice of ready to ship, whenever given: 100% of the Price.
15 APPLICABLE LAW
15.1 The laws of Queensland apply to this Agreement and the parties. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland, and courts of appeal from them.
16 CREDIT ACCOUNTS
16.1 A credit application must be completed and approved in writing by ENERAQUE and trading on credit will be immediately suspended if the Customer's credit account is not maintained in accordance with the Customer's approved terms of trade.
17.1 If the quotation includes the installation of any of the Equipment, this clause 17 applies.
17.2 The Customer must ensure that ENERAQUE has sufficient access to the installation site on and from the date specified in ENERAQUE's quotation, or if no date is specified, the date upon which ENERAQUE reasonably requires such access. If such access is not available, the Customer must compensate ENERAQUE for its additional expenses, costs and losses arising from the delay.
17.3 ENERAQUE will install the Equipment within the time specified in ENERAQUE's quotation, but that time will be extended if ENERAQUE is delayed in the commencement or progress of installation by any cause beyond its control.
17.4 During installation, the Equipment must be insured by the Customer to its full replacement value against loss or damage from all usual construction risks. The insurance policy must note ENERAQUE's interest in the Equipment.
18 LICENCES AND APPROVALS
18.1 Unless otherwise specified in the quotation, the Customer shall be responsible for obtaining, and the costs of, all necessary licences or approvals required by Authorities.
19.1 The Customer may not, without the prior written approval of ENERAQUE, assign this Agreement, any warranty, any payment or any other right, title or interest under this Agreement.
20.1 Eneraque reserves the right to recover all or any Invoices due, under the Building and Construction Industry Payments Act 2004.