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Design and Manufacture - Terms & Conditions

  1. Project
    1. T.M.H. will undertake the Project for the Customer.
    1. Upon signing and returning the Letter of Offer to T.M.H., there will be a legal agreement between the Customer and T.M.H. regarding the Project, which agreement will be subject to these Terms and Conditions and the Letter of Offer (collectively Agreement).
  1. Payment
    1. Consideration
    2. In consideration for T.M.H. undertaking the Project, the Customer must pay T.M.H. the Project Cost, which cost must be paid in accordance with this clause.
    3. Timing of payments
      1. The Goods must be paid for by the Customer in accordance with payment process outlined in the Letter of Offer.
      1. T.M.H will not commence work on the Project until the Customer pays any upfront payments in accordance in the Letter of Offer.
    1. GST
      1. GST is not included in the Project Cost or other costs charged by T.M.H. under this Agreement. Such costs should be read as "plus any applicable GST" and are subject to change to take account of any GST imposed on supplies T.M.H. makes.
      1. The Customer must pay any GST applicable on the Project Costs or other costs charged by T.M.H. under this Agreement at the same time as making the payments which attract that GST.
      1. T.M.H. must issue the Customer with a tax invoice for any GST payments the Customer makes under this Agreement.
      1. If T.M.H is entitled to be reimbursed or indemnified for a Loss incurred in connection with this Agreement, then the amount of the reimbursement must be reduced by an amount equal to any input tax credit to which the party being reimbursed (or its representative member) is entitled in relation to that loss, cost, expense or outgoing.
    1. Non-payment
    2. In the event that the Customer does not make a payment in relation to the Project within 5 Business Days of the time specified in the Letter of Offer for when that payment must be made:
      1. the Customer will be liable for any of T.M.H.'s expenses associated with the collection of that outstanding payment. These costs include, but are not limited to, solicitors, legal advisers and debt recovery agents and interest at the rate of 11%p.a. for the period that the payment is outstanding; and
      1. T.M.H. may terminate this Agreement in accordance with clause 13(b).
  1. Delivery, installation, inspection and return of Goods
    1. Delivery and installation
      1. T.M.H. will deliver the Goods to the Customer, and install the Goods for the Customer, in accordance with the delivery and installation details outlined in the Schedule to the Letter of Offer.
      1. Risk of Loss to the Goods, or part of the Goods, will pass to the Customer upon the Goods, or part of the Goods, being delivered.
      1. Unless specifically included in the Project Cost or inclusions set out in the Schedule to the Letter of Offer, the Customer is responsible for any Delivery and Installation Costs in addition to the Project Cost. In the event that T.M.H. pays Delivery and Installation Costs, the Customer must reimburse these costs to T.M.H. within 10 Business Days of receiving an invoice from T.M.H. requiring such reimbursement.
    1. Inspection
      1. The Customer must promptly inspect the Goods delivered or installed and any defect or omission must be reported to T.M.H. within 10 Business Days.
      1. If the Customer fails to give such notice, the Goods will be deemed to be in accordance with the Agreement and the Customer will be bound to accept and pay for the Goods.
    1. Return
    2. With the exception of warranty claims, any Goods returned by the Customer will only be accepted by T.M.H., at T.M.H.'s sole discretion, if:
      1. they are returned within 10 Business Days of their delivery;
      1. they are undamaged and in their original condition;
      1. they are not a special design or cut piece specifically ordered by the Customer;
      1. T.M.H. retains all payments made by the Customer in relation to the Goods up to the date of return; and
      1. a restocking fee of 20% of the invoice value of the Goods returned plus freight costs, are paid by the Customer.
  1. Retention of Title
    1. T.M.H. will retain title to the Goods until all payments due by the Customer to T.M.H. are paid in full, notwithstanding that risk in the Goods may have passed to the Customer.
    1. Until T.M.H. receives full payment for the Goods, the Customer must:
      1. hold the Goods as bailee for T.M.H.;
      1. grant T.M.H., including its personnel and agents, access to any premises where the Goods are situated (and must procure any such authorisation required from any third party) for the purpose of recovering such the Goods in the event on non-payment;
      1. ensure that the Goods are stored so that they are clearly identifiable as the property of T.M.H.; and
      1. not alter or change the Goods so as to change their quality or nature.
  1. Site
    1. In the event that T.M.H. undertakes any work on the Site, then:
    1. the Customer indemnifies T.M.H. for any Loss suffered by T.M.H. or any T.M.H. personnel in relation to the presence of T.M.H. or T.M.H.'s personnel at the Site;the Customer must have insurance sufficient to cover the presence of T.M.H. and any T.M.H. personnel at the Site, including public and product liability insurance; and
      1. it is the Customer's responsibility to provide T.M.H. and any T.M.H. Personnel with relevant Occupational Health and Safety information and requirements regarding the Site.
    1. Sub-contract
      1. T.M.H. may, without the Customer's consent, sub-contract the performance of the Project and/or any part of the work to be provided by T.M.H. in relation to the Project.
    1. Customer warranties, obligations and acknowledgement
        1. Customer warranties
        2. The Customer warrants that:
          1. the Customer will comply with all laws and obtain all consents and approvals (including environmental and site approvals) required for the Project; and
          1. T.M.H. can undertake the Project without infringing any third party rights, whether such rights relate to Intellectual Property or otherwise.
        1. Customer obligations
        2. Without limiting the Customer's other obligations of this Agreement, the Customer must provide the information, materials, services, support, equipment or other miscellaneous details specified in Part 9 of the Schedule to the Letter of Offer at the times therein specified.
        1. Customer acknowledgment
        2. The Customer acknowledges that T.M.H.'s obligations under this Agreement are subject to the Customer's strict compliance with this clause 7.
      1. Intellectual Property
        1. T.M.H. retains the sole and exclusive ownership of all Intellectual Property created or used by T.M.H. under this Agreement. For the avoidance of doubt, this includes the Intellectual Property rights in any designs, drawings or specifications prepared by T.M.H. as a part of the Goods.
        1. The Customer must not, and must ensure that its personnel do not, use, reproduce or disclose any Intellectual Property without the express consent in writing from T.M.H..
        1. To the extent that Intellectual Property subsists in the Goods, T.M.H. grants the Customer a royalty-free, perpetual, non-exclusive right to use that Intellectual Property solely with respect to the use of those Goods by the Customer as a part of its normal business operations.
        1. The Customer must promptly inform T.M.H. of all breaches, potential breaches, claims or potential claims in relation to the Intellectual Property created or used by T.M.H. under this Agreement.
      1. Confidential Information
          1. Each party must:
            1. keep confidential all Confidential Information provided by the other party under this Agreement; and
            1. not disclose such Confidential Information without the other party's prior written consent.
          1. The obligations in clause 9(a) do not apply to Confidential Information which a party:
            1. is required by law to disclose;
            1. discloses to its professional advisors; or
            1. discloses to its personnel, but only to the extent necessary to perform its obligations under this Agreement.
          1. Upon the termination of expiry of this Agreement:
            1. the Customer must return to T.M.H. or destroy all Confidential Information relating to T.M.H.; and
            1. T.M.H. must return to the Customer all Confidential Information relating to the Customer, except that T.M.H. may retain (and maintain the confidentiality of) single copies of any Confidential Information as a record of service.
        1. T.M.H. warranty
          1. Warranties
          2. T.M.H. warrants to the Customer that the Goods will be free from any material defect in design and manufacture, which specifically excludes normal wear and tear. This warranty is for 6 months from the Date of Commissioning. The Customer's sole remedy for breach of this warranty is, at T.M.H.'s discretion, the repair, replacement or refund of the Goods.
              1. T.M.H. is aligned with ISO 9001-94 and this forms the basis for T.M.H.'s manufacturing standards. While every effort is made to satisfy the Customer's requirements, these independent standards may take priority over the Customer's requests with respect to the manufacture of the Goods.
              1. To the extent that the Goods incorporate any third party manufacture warranty, T.M.H. will, wherever practicable, ensure that such warranty is passed to the Customer.
            1. Limit of warranties
              1. Except for the express terms and warranties set out in this Agreement and those implied terms or warranties that are imposed by statute that are mandatory and cannot be excluded, T.M.H gives no further warranties to the Customer and all other terms, conditions, warranties, stipulations or other statements whatsoever, whether express or implied, by statute or common law, or otherwise howsoever, are expressly excluded.
              1. Notwithstanding anything else in this Agreement, where any statute implies any terms or warranty into this Agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying that term or warranty (except in certain cases), that term or warranty will be deemed to be included in this Agreement, but the liability of T.M.H and its affiliates respectively for breach of that term will be limited to, so far as permitted by that statute, in one or more ways (at T.M.H's option) permitted by section 68A(1) of the Trade Practices Act 1974 (Cth), section 35(1) of the Fair Trading Act 1987 (WA) or any other similar provision contained within any other like statute.
          1. Limitation and apportionment of liability
            1. Limitation of liability
            2. T.M.H. is not liable for any Loss which the Customer or any other person suffers as a result of:
              1. any event of Force Majeure;
              1. any Consequential Loss of any nature however arising (including but not limited to negligence);
              1. faults or defects in the Goods which occur due to:
                1. insufficient, deficient or incorrect maintenance according to any operational manual or other documentation supplied by T.M.H.
                1. improper installation of the Goods by the Customer;
                1. abuse of the Goods by any person;
                1. incorrect operational procedures, such as requiring the Goods to work beyond their stated capacity; or
                1. normal wear and tear; or
                1. the Customer's failure to provide T.M.H. with all relevant information regarding the Customer's requirements for the Goods, including their characteristics, process requirements and the local environment for use,
            • and, in any event, T.M.H.'s aggregate liability arising out of or in connection with this Agreement, however arising (including negligence) is limited to an amount equal to the aggregate Project Cost actually received by T.M.H..
              1. Apportionment of liability
              2. To the extent permitted by law, T.M.H. is not liable for any Loss suffered by the Customer to the extent that such Loss is attributable to fault, negligence or lack of care on the Customer's part or on the part of any person for whom the Customer is responsible.
            1. Force Majeure
              1. Where an event of Force Majeure prevents or delays the performance of any obligation under this Agreement (other than the obligations to pay money), that obligation is suspended for as long as the event of Force Majeure continues.
              1. In the event that an event of Force Majeure continues for more than 20 Business Days, then T.M.H. may, in its sole discretion, terminate this Agreement.
            1. Termination
              1. Customer has no right to terminate
              2. The Customer has no right to terminate this Agreement.
              1. T.M.H. right to terminate
              2. T.M.H. may terminate this Agreement upon giving the Customer 10 Business Days notice in the event that:
                1. the Customer breaches this Agreement and such breach is not rectified within 10 Business Days of T.M.H. providing notice of the breach;
                1. the Customer suffers an Insolvency Event; or
                1. any amount payable by the Customer under this Agreement is not paid within 5 Business Days of the due date.
              1. Effect of termination
              2. In the event that T.M.H. exercise its right to terminate this Agreement:
                1. T.M.H. will retain any payments made by the Customer up to and including the date of termination;
                1. the Customer must reimburse T.M.H. for all expenses incurred by T.M.H. up to that point of the Project, including but not limited to personnel, materials or manufacturing costs. In the event that these expenses are less than the amounts already paid to T.M.H., the Customer will not be required to make any further payments; and
                1. T.M.H. will retain the title to any Goods.
            1. General
              1. Notices:
                1. Any notice or other communication under this Agreement, including a request, demand, claim, consent, approval or authority, must comply with the requirements of this clause.
                1. All notices be in legible writing and in English.
                1. If the notice is sent to T.M.H., it must be sent to the address on the Letter of Offer, or otherwise advised to the Customer by notice. If the notice is sent to the Customer, it must be sent to the Customer's address in the Letter of Offer, or otherwise advised to T.M.H. by notice.
                1. If a notice is delivered in person, then it is regarded as being given by the sender and received by the addressee when delivered to the addressee.
                1. If a notice is delivered by post, then it is regarded as being given by the sender and received by the addressee 2 Business Days from and including the date of posting.
                1. If a notice is delivered by facsimile transmission, then it is regarded as being given by the sender and received by the addressee, whether or not legibly received, when transmitted to the addressee.
                1. Notwithstanding any other provision of this clause, if the delivery or receipt of any notice is on a day which is not a Business Day or is after 4.00pm (addressee's time), it is regarded as received on the following Business Day.
              1. Governing law: The laws of the state of Western Australia will apply to the Agreement and the parties consent to the non-exclusive jurisdiction of the Western Australian Courts & Tribunals.
              1. Variations:
                1. A variation to the terms of this Agreement must be in writing and signed by the parties.
                1. A variation to the terms of this Agreement, including to any particulars in relation to the Project, whether initiated by the Customer or required as a result of a change in the nature of the Project, may result in an amendment to the Project Cost. The Customer must pay any such additional cost in full.
              1. Prohibition and enforceability:
                1. Any provision of, or the application of any provision of, this Agreement or any right of a party which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
                1. Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
                1. Where a clause in this Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
              1. Waiver:No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
              1. Assignment: The Customer must not assign any of its rights or obligations under this Agreement without T.M.H.'s prior written consent.
              1. Entire agreement: This Agreement replaces all previous agreements in respect of its subject matter and contains the entire agreement between the parties.
            1. Definitions
              1. The meanings of the terms used in these Terms and Conditions are set out below:
              1. Agreement means the agreement between T.M.H. and the Customer regarding the Project, which agreement comprises of these Terms and Conditions and the Letter of Offer.
              1. Business Day means any day excluding a Saturday, Sunday or public holiday in Perth, Western Australia.
              1. Confidential Information means any information of a confidential nature relating to a party or its business, including but not limited to its work procedures, processes, employees, handbooks, designs, Intellectual Property, concepts, ideas, data, programs, technical knowledge or services.
              1. Consequential Loss means loss of profits, loss of revenue, loss of opportunity, loss of a chance and other similar losses.
              1. Customer means the Customer named in the Letter of Offer.
              1. Date of the Commissioning means the date upon which the Goods are commissioned by T.M.H. for use by the Customer.
              1. Delivery and Installation Costs means any costs associated with the delivery and installation of the Goods including but not limited to the cost of freight, insurance whilst in transit, personnel, preparing the Site (including moving equipment or excavation costs), the hire of tools and any other such costs.
              1. Force Majeure means any act outside of the reasonable control of a party, including an act of God; war, revolution or any other unlawful act against public order; a government restraint; an industrial dispute and adverse weather conditions.
              1. Goods means any goods which are produced and supplied by T.M.H. for the Customer as a part of the Project, which goods may be designed, manufactured or otherwise created and may be drawings, specifications, designs, manuals, materials, apparatus, parts, machinery or otherwise.
              1. GST means Goods and Services Tax.
              1. Insolvency Event means any event whereby:
                1. if the Customer is a company – a custodian, receiver, trustee, administrator or similar official is appointed to a business; a business suspends payment of its debts generally; a business is or becomes unable to pay its debts when they are due or is presumed to be insolvent under the Corporations Act 2001 (Cth); or an application or order is made for a business' winding-up, dissolution or liquidation or a resolution is passed or any steps are taken to pass such a resolution; or
                1. if the Customer is a person, partnership or other entity – an act of bankruptcy.
              1. Intellectual Property means all intellectual and industrial property, whether registered or not, existing anywhere in the world including patents, designs, trade marks, plans, drawings, specifications, computations, files, copyright, trade secrets or confidential information.
              1. Letter of Offer means the letter of offer sent by T.M.H. to the Customer regarding the Project.
              1. Loss means any liability, loss, damage, cost or expense.
              1. Project means the design and/or manufacture of the Goods, which project is specified in Part 1 of the Schedule to the Letter of Offer.
              1. Project Cost means the Project Cost outlined in the Schedule to the Letter of Offer.
              1. Site means any site owned, occupied, operated, used or made available by the Customer at which T.M.H. or its personnel are required to attend as a part of the Project.
              1. Terms and Conditions means these terms and conditions.
              1. T.M.H. means T.M.H. Total Materials Handling Pty Ltd (A.C.N. 141 271 178)

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