Terms and Conditions

Terms & Conditions of Supply (Purchases)

STANDARD TERMS AND CONDITIONS

 

 

FOR THE PURCHASE OF

 

 

GOODS AND/OR SERVICES

 

 

  1. Definitions and Interpretation
    1. In these Conditions, the following definitions apply:

Bribery Legislation: the Bribery Act 2010 (UK) and any and all similar anti-bribery and/or anti-corruption legislation or codes of practice of any jurisdiction applicable from time to time to the Supplier, the Customer, these Conditions and the Contract and/or its subject matter (including, the U.S. Foreign Corrupt Practices Act of 1977).

Business Day: a day other than a Saturday, Sunday or public holiday in New South Wales, Australia.

Change of Control: that a person who had Controlled any person ceases to do so or another person acquires Control of such person, unless such Change of Control happens for the purpose of a solvent voluntary reconstruction or amalgamation.

Code: the Customer’s Code of Business Conduct as updated from time to time and which is available at www.hsholdings.co.uk.

Commencement Date: has the meaning set out in clause 2.2.

Compliance Regulations: together, the Bribery Legislation, the Code, the Customer’s Modern Slavery Policy and the Modern Slavery Policy.

Conditions: these terms and conditions as amended from time to time in accordance with clause 19.8.

Conflict Minerals: tin, tungsten, tantalum and gold and their ores sourced in conditions of armed conflict and/or human rights abuses, whether in the eastern Democratic Republic of Congo or an adjoining country or otherwise.

Contract: the contract between the Customer and the Supplier for the purchase of Goods and/or Services pursuant to an Order in accordance with these Conditions.

Control: that a person possesses, directly or indirectly, the power to direct or cause the direction of the affairs and policies of the other person (whether through ownership or share capital, possession of voting power, ability to appoint directors, contract or otherwise) and “Controls” and “Controlled” shall be interpreted accordingly.

Customer: Hill & Smith Pty Limited

Customer Materials: has the meaning set out in clause 5.3(j).

Customer’s Modern Slavery Policy: the Anti-Slavery and Human Trafficking Policy of the Customer and/or its parent or holding company, as updated by the Customer and notified to the Supplier from time to time (a copy of which will be made available to the Supplier on request).

Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

Goods: the goods (or any part of them) set out in the Order which the Supplier is to provide to the Customer in accordance with these Conditions.

Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.

GST and Goods and Services Tax have the meanings ascribed to them by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as may be amended from time to time.

Intellectual Property Rights:    patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Modern Slavery Laws: the Modern Slavery Act 2018 (NSW) and all other applicable laws which relate to slavery, indentured workforces and human trafficking.

Modern Slavery Policy: an internal policy to ensure compliance with the Modern Slavery Laws, which shall include provision of appropriate and regular training for any Supplier Related Party.

MSA Offence: an offence under the Modern Slavery Laws.

New Supplier: any person that provides services in replacement of any of the Services whether those services are the same as or similar to any or all of the Services.

Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, or such other form as the Customer may determine from time to time.

PPSA means the Personal Properties Securities Act 2009 (Cth) and any subordinate legislation.

Privacy Laws means the Privacy Act 1988 (Cth) and any subordinate legislation.

Security Interest has the meaning given to that term in the PPSA.

Services: the services, including without limitation any Deliverables, to be provided by the Supplier to the Customer under the Contract as set out in the Service Specification.

Service Specification: the description or specification for Services agreed in writing by the Customer and the Supplier.

Supplier: the person or firm from whom the Customer purchases the Goods and/or Services.

Supplier Related Party: the Supplier’s officers, employees and agents and all other persons employed or engaged by the Supplier, including its own suppliers, in connection with the Contract or any part of it and/or any associate of such person.

  1. In these Conditions, the following rules of interpretation apply:
    1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
    2. a reference to a party includes its personal representatives, successors or permitted assigns;
    3. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
    4. any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
    5. a reference to writing or written does not include e-mail; and
    6. unless the context otherwise requires, a reference to one gender shall include a reference to the other genders and words expressed in the singular shall include the plural and vice versa.
  1. Basis of Contract
    1. The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
    2. The Order shall be deemed to be accepted on the earlier of:
      1. the Supplier issuing written acceptance of the Order; or
      2. any act by the Supplier consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (Commencement Date).

  1. An Order may be withdrawn or amended by the Customer at any time before acceptance by the Supplier. If the Supplier is unable to accept an Order, it shall notify the Customer promptly.
  2. These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate at any time including in accordance with clause 2.2(a) above, or which are implied by trade, custom, practice or course of dealing.
  3. All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
  1. Supply of Goods
    1. The Supplier shall ensure that, in addition to conforming in all respects to the relevant provisions of the Australian Consumer Law and with all other statutory and legal requirements the Goods shall:
      1. correspond with their description and any applicable Goods Specification and all samples provided or given by the Supplier to the Customer, and all written descriptions published by the Supplier (whether specifically to us or generally) in respect of the Goods;
      2. be of merchantable quality and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgment;
      3. where applicable, be free from defects in design, materials and workmanship and remain so for 24 months after delivery;
      4. not infringe the privacy rights or Intellectual Property Rights of any third party; and
      5. comply with all applicable laws, rules, statutes, regulations, bye-laws and codes of practice, including in relation to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
    2. The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
    3. The Customer shall have the right to inspect and test the Goods at any time before delivery.
    4. If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
    5. Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and the Customer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
    6. Any acceptance of defective Goods or any payment made in respect thereof, shall not constitute a waiver of any of the Customer’s rights and remedies, including those set out at clause 7.
  2. Delivery of Goods
    1. The Supplier shall ensure that:
      1. the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
      2. each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
      3. if the Supplier requires the Customer to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
    2. The Supplier shall deliver the Goods:
      1. on the date specified in the Order or, if no such date is specified, then within three (3) days of the date of the Order;
      2. to the Customer’s premises at the address set out in the Order or as instructed by the Customer before delivery (Delivery Location);
      3. during the Customer’s normal hours of business on a Business Day, or as instructed by the Customer.

Time of delivery of the Goods is of the essence of the Contract.

  1. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
  2. If the Supplier:
    1. delivers less than ninety per cent (90%) of the quantity of Goods ordered, the Customer may reject the Goods; or
    2. delivers more than one hundred per cent (100%) of the quantity of Goods ordered, the Customer may at its sole discretion reject the Goods or the excess Goods and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered and the Customer accepts the delivery, a pro rata adjustment shall be made to the price for such Goods.
  3. The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Customer to the remedies set out in clauses 7.1 and/or 7.2 below.
  4. Risk in the Goods shall pass to the Customer on delivery and when the Customer has accepted the Goods as conforming in every respect with the Contract.
  5. Title to the Goods shall pass to the Customer on the sooner of: (a) payment by the Customer for the Goods; or (b) delivery of the Goods to the Customer.
  1. Supply of Services
    1. If the Contract is for or includes Services to be performed by the Supplier then the Supplier shall, from the Commencement Date and for the duration of the Contract, provide the Services to the Customer in accordance with the terms of the Contract.
    2. The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by the Customer and time of performance of the Services is of the essence of the Contract.
    3. In providing the Services, the Supplier warrants and undertakes that it shall:
      1. co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
      2. perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
      3. use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with this Contract;
      4. ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the Customer;
      5. provide all equipment, tools and vehicles and such other items as are required to provide the Services;
      6. use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
      7. obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws, statutes, regulations, by-laws, licences and codes of practice;
      8. observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises and use best endeavours to cause minimum disruption to the Customer;
      9. immediately advise the Customer with as much notice as possible if it becomes aware of any circumstances that may cause delay, disruption or failure to perform the Services and the Supplier shall use all reasonable endeavours to mitigate against such problems;
      10. hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (Customer Materials) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorisation; and
      11. not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services.
  2. Compliance
    1. In the performance of all of its obligations under these Conditions and the Contract the Supplier shall comply with this clause 6 at all times.
    2. Each Party agrees to comply fully, at its own expense, with all applicable laws and regulations of Australia and any other applicable local law or regulation, including (without limitation) import and export laws, restrictions, national security controls, anti-slavery and human trafficking legislation and anti-corruption legislation.
    3. The Supplier represents, warrants and undertakes to the Customer that:
      1. in relation to these Conditions and the Contract and/or its subject matter or otherwise, neither the Supplier nor any of its employees, sub-contractors or agents or others performing services on behalf of the Supplier has done (or agreed to do) or will do (or agree to do) anything which constitutes a breach by the Supplier or Customer of the Compliance Regulations;  
      2. the Supplier has in place, and will at all times during the term of the Contract continue to have in place, a Modern Slavery Policy and adequate procedures designed to prevent any person associated with the Supplier from committing an offence under the Compliance Regulations and will at all times during the term of the Contract comply, with the most recent guidance issued from time to time by any applicable government department or regulatory body in relation to the Compliance Regulations;
      3. the Supplier is aware of any circumstances within its supply chain or involving any Supplier Related Party that could give rise to an investigation relating to an alleged breach of, or prosecution under, the Compliance Regulations;
      4. the Supplier will not use and will ensure that its supply chain does not use any Conflict Minerals in its manufacturing or contract manufacturing activities or in the provision of the Goods or Services;
      5. the Supplier shall comply with the Compliance Regulations in connection with the Contract or its relationship with the Customer or any companies within the Hill & Smith Holdings plc group of companies, and the Customer’s business and shall immediately notify the Customer if it discovers or suspects that any of its officers, directors, employees or representatives are acting or have acted in a way which violates such Compliance Regulations and take such remedial action as the Customer shall reasonably direct;
      6. the Supplier shall maintain such records relating to any Contract and/or in relation to these Conditions as to enable the Customer to determine the Supplier’s compliance with the Compliance Regulations in accordance with clause 6.6;
      7. the Supplier will sign an Anti-Corruption Certification substantially in the format set out in Schedule 1, as amended from time to time by the Customer, at least once in every 12 month period of the Contract;
      8. the Supplier will promptly co-operate (and will procure that each of its employees, agents, sub-contractors and any others performing services on its behalf in relation to the contract and/or its subject matter will co-operate) with the Customer and/or any regulator and/or prosecutor in any investigation relating to any breach, or alleged breach, of any Compliance Regulation by the Supplier or any of its employees, agents, sub-contractors or others performing services on its behalf; and
      9. neither the Supplier nor any of its shareholders, subsidiaries or affiliates nor any of its or their directors, officers, agents or employees has been subject to any investigation by any government agency with regard to any breach of the Compliance Regulations.
    4. The Supplier will throughout the term of the Contract comply with, monitor and enforce the obligations referred to in clause 6.3 above.
    5. Without prejudice to clause 19.1(b), the Supplier shall ensure that any contract it enters into with a Supplier Related Party contains substantially the same provisions as those provisions in the Contract and/or the Conditions, including an obligation to comply with the Modern Slavery Laws and the Modern Slavery Policy, and an ability for the Supplier to audit any Supplier Related Party to ensure compliance with the Modern Slavery Policy, the Customer’s Modern Slavery Policy and the Modern Slavery Laws.
    6. The Supplier shall carry out an annual audit to monitor its compliance with the Compliance Regulations and provide a copy of the audit report to the Customer which shall include details of the steps taken by the Supplier to ensure compliance with the Compliance Regulations. The Supplier shall also provide a copy of each of its modern slavery statements (as required by section 24 of the Modern Slavery Act 2018 (NSW)) to the Customer promptly after it is published.
    7. The Supplier agrees that it must be able to demonstrate its compliance with the requirements referred to in this clause 6 at the request of and to the satisfaction of the Customer which includes, but is not limited to, the Customer having the right to inspect (at the Customer’s cost and upon reasonable notice) any site, records and files of the Supplier relating to the Contract (or any other business transaction with the Customer or any member of the Hill & Smith Holdings PLC group of companies).
    8. The Supplier shall, at its own cost, perform any appropriate remediation actions required by the Customer or any regulator to address any issues or failures whether identified by an audit carried out pursuant to clauses 6.6 or 6.7 or otherwise, and within such timescales as are agreed with the Customer.
    9. If the Supplier fails to comply with this clause 6, the Customer shall be entitled, in its sole discretion, to terminate the Contract and any other contracts between the Supplier and Customer without penalty to the Customer but with obligations for the Supplier to remedy any damages suffered by the Customer as a result of such termination or breach of Contract. Any termination pursuant to this clause 6.9 will be without prejudice to any right and/or remedy, that has already accrued, or may subsequently accrue, to the Customer.
    10. The Supplier shall be responsible for obtaining any necessary import and export licences or permits necessary for the performance of its obligations under the Contract and the Supplier shall be responsible for any and all customs, duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation, exportation and delivery of the Goods and Services and any associated technology.
    11. The Supplier in addition, hereby confirms to the Customer, that it does not in the course of its general business activities, (regardless of any prior export licence, licence exception or general licence), supply Goods or Services and their associated technologies directly or indirectly to any person, entity or into any territory which is embargoed, prohibited, debarred or otherwise the subject of sanctions from the United Kingdom, the European Union, the United States of America, Australia or the territory in which the Supplier is located.
    12. In addition to all other remedies available to the Customer, the Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including any indirect, special or consequential losses or damages, and any direct or indirect loss of profit, loss of revenue, loss of business, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with the Supplier’s breach of any of the provisions of this clause 6.
    13. For the avoidance of doubt, this clause 6 shall survive termination or expiry of the Contract, howsoever arising.
  3. Customer Remedies
    1. If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, the Customer shall, without limiting its other rights or remedies, have one or more of the following rights:
      1. to terminate the Contract with immediate effect by giving written notice to the Supplier;
      2. to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make without any liability of the Customer to the Supplier;
      3. to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
      4. where the Customer has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and
      5. to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to meet such dates.
    2. If the Goods are not delivered by the applicable date, the Customer may, at its option, claim or deduct five per cent (5%) of the price of the Goods for each week’s delay in delivery by way of liquidated damages, up to a maximum of twenty per cent (20%) of the total price of the Goods. If the Customer exercises its rights under this clause 7.2 it shall not be entitled to any of the remedies set out in clause 7.1 in respect of the Goods’ late delivery.
    3. If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1 and/or performed Services that do not comply with the undertakings set out in clause 5.3, then, without limiting its other rights or remedies, the Customer shall have one or more of the following rights, whether or not it has accepted the Goods or Services:
      1. to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
      2. to terminate the Contract with immediate effect by giving written notice to the Supplier;
      3. to require the Supplier at its sole cost to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
      4. to require the Supplier at its sole cost to re-execute the Services in accordance with the Contract, or to provide a full refund of the price of the rejected Services;
      5. to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
      6. to refuse to make payment of the price of the Goods or Services;
      7. to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods and/or services from a third party; and
      8. to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier’s failure to supply Goods in accordance with clause 3.1 and/or Services in accordance with clause 5.3.
    4. These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
    5. If the Customer exercises any right under these Conditions the Customer may at its absolute discretion require the Supplier to collect the relevant Goods forthwith or return the Goods to the Supplier at the Supplier’s cost.
    6. The Customer’s rights under this Contract are in addition to its rights and remedies implied by statute and common law.
  4. Customer’s Obligations
    1. The Customer shall:
      1. provide the Supplier with reasonable access at reasonable times to the Customer’s premises for the purpose of providing the Services in accordance with the Contract; and
      2. provide such information as the Supplier may reasonably request for the provision of the Services and the Customer considers reasonably necessary for the purpose of providing the Services in accordance with the Contract.
  5. Charges and Payment
    1. The price for the Goods:
      1. shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier’s published price list in force at the Commencement Date;
      2. shall be payable in the currency stated on the Order or, where no currency is stated, in Australian dollars; and
      3. shall be inclusive of the costs of packaging, labelling, loading, unloading, insurance, delivery, freight and carriage of the Goods, unless otherwise agreed in writing by the Customer. No extra charges shall be effective unless agreed in writing and signed by the Customer.
    2. The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges for the Services shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
    3. In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of performance of the Services. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
    4. In consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay the invoiced amounts within thirty (30) days of the end of the month in which a correctly rendered invoice is provided by the Supplier to the Customer. Time of payment is not of the essence.
    5. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of GST from time to time. Where any taxable supply for GST purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid GST invoice from the Supplier, pay to the Supplier such additional amounts in respect of GST as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
    6. If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 3% per annum. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments that the defaulting party disputes in good faith.
    7. The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.
    8. The Supplier agrees that:
      1. if at any time the Supplier sells any Goods and/or Services to a comparable customer for less than the fees then in force for Goods and/or Services, the Supplier shall reduce the relevant fees to match the lower price for so long as the lower price is available and refund to the Customer the difference between the fees and the lower price in respect of the Customer’s purchases of the Goods and/or Services after the Supplier began charging the lower price. For these purposes, “comparable” means a customer that purchases goods and/or services in substantially similar volumes as the Customer on broadly similar terms and conditions; and
      2. the Customer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase that the Supplier customarily grants.
    9. The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract or otherwise.
  6. Intellectual Property Rights
    1. In respect of the Goods and any goods that are transferred to the Customer as part of the Services under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to the Customer, it will have full and unrestricted rights to sell and transfer all such items to the Customer.
    2. The Supplier assigns to the Customer, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
    3. The Supplier shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Part IX of the Copyright Act 1968 (Commonwealth) or any similar provisions of law in any jurisdiction.
    4. The Supplier shall, promptly at the Customer’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to the Customer in accordance with clause 10.2 above.
    5. All Customer Materials are the exclusive property of the Customer.
    6. Any background Intellectual Property Rights subsisting in any information provided by the Customer to the Supplier including in the Customer Materials shall remain vested in the Customer and the Customer shall grant to the Supplier a non-exclusive, worldwide, royalty free, revocable licence to use such background Intellectual Property Rights solely for the period of the Contract for the purposes of the Contract. Such licence shall be non-transferable, non-assignable and non-sublicensable except to the extent that the Customer gives its express prior written consent (which may be provided or withheld or conditional, in the Customer’s absolute discretion). Any foreground Intellectual Property Rights generated by the Supplier in the performance of its obligations under the Contract or in respect of these Conditions shall vest in the Customer absolutely and the Supplier shall have no interest right or title in respect of the same.
  7. Indemnity
    1. The Supplier shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any indirect, special or consequential losses and any direct or indirect loss of profit, loss of revenue, loss of business, loss of anticipated savings, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered incurred by the Customer as a result of or in connection with:
      1. any claim made against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Deliverables and/or the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
      2. any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods and/or Deliverables, to the extent that the defects in the Goods and/or Deliverables are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
      3. any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
      4. any breach of clauses 6 and Error! Reference source not found..
    2. This clause 11 shall survive termination of the Contract.
  8. Insurance

During the term of the Contract and for a period of six (6) years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract each in the amount which is the higher of:

  1. the insurance amount(s) specified in the Contract; or
  2. in respect of the provision of the Services, cover in the amount of AUD$1,000,000 (one million dollars) per event and AUD$3,000,000 (three million dollars) in aggregate and in respect of the manufacture and supply of Goods, cover in the amount of AUD$1,000,000 (one million dollars) per event and AUD$5,000,000 (five million dollars) in the aggregate,

and shall, at the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each of the requisite insurances.

  1. Confidentiality
    1. A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
    2. This clause 13 shall survive termination of the Contract.
  2. Privacy
    1. To the extent that the Customer and the Supplier respectively collect personal information about one another, their businesses and personnel (“Personal Information”) they shall at all times abide by the Privacy Laws in the handling of that Personal Information.
    2. The Supplier acknowledges and agrees that the Customer may transfer Personal Information to other companies, to related bodies corporate of the Customer, to credit rating agencies and other third parties engaged by the Customer in accordance with the Customer’s legitimate business needs including for the purpose of obtaining credit reports about the Supplier or its directors for the purpose of assessing creditworthiness and for the purpose of exchanging Personal Information with other credit agencies in case of any default by the Supplier.

 

  1. Termination
    1. Without limiting its other rights or remedies, the Customer may terminate the Contract in whole or in part:
      1. in respect of the supply of Services, by giving the Supplier one (1) months’ written notice; and
      2. in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Supplier, whereupon the Supplier shall discontinue all work on the Contract. The Customer shall pay the Supplier fair and reasonable compensation for any work in progress to the extent that the same cannot be redeployed or otherwise mitigated in respect of the Goods at the time of termination, but such compensation shall not include loss of anticipated profits (whether direct or indirect) or any consequential loss, special loss or indirect loss or damage whatsoever.
    2. Without limiting its other rights or remedies, the Supplier may terminate the Contract by giving the Customer three (3) months’ written notice.
    3. In any of the circumstances in these Conditions in which a party may terminate the Contract, where both Goods and Services are supplied, that party may terminate the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
    4. Without limiting its other rights or remedies, the Customer may terminate the Contract in whole or in part with immediate effect by giving written notice to the Supplier if:
      1. the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of receipt of notice in writing to do so. For the avoidance of doubt a breach of clause 6 of these Conditions shall constitute a material breach for the purposes of this clause;
      2. the Supplier repeatedly or persistently breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
      3. to the extent permitted by law:
        1. where the Supplier is a body corporate:
  1. an administrator, liquidator or provisional liquidator is appointed to the Supplier;
  2. a receiver or receiver and manager is appointed to the Supplier or any part of its property;
  3. the Supplier enters into or proposes to enter into a deed of company arrangement or scheme of arrangement or a composition with, or assignment for the benefit of, all or any class of its creditors, or a moratorium involving any of them, otherwise than for the purpose of an amalgamation or reconstruction;
  4. the Supplier becomes insolvent within the meaning of section 95A(2) of the Corporations Act 2001 (Cth);
  5. a winding up order is made in respect of the Supplier or a resolution for the winding up of the Supplier is passed or attempted to be passed, except for the purposes of reconstruction or amalgamation;
  6. an application is made (which is not dismissed within 10 Business Days) for an order, a resolution is passed or proposed, a meeting is convened or any other action is taken to cause anything described above, other than for the purposes of an amalgamation or reconstruction;
  7. the Customer forms the view that, or the Supplier is or states that, the Supplier is unable to pay its debts when they fall due; or
  8. anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs to the Supplier;
    1. where the Supplier is a person:
  1. the Supplier becomes bankrupt;
  2. an official manager is appointed to all or any part of the property of the Supplier;
  3. the Supplier enters into or proposes to enter into a scheme of arrangement or a composition with, or assignment for the benefit of, all or any class of its creditors, or a moratorium involving any of them;
  4. the Customer forms the view that, or the Supplier is or states that, the Supplier is unable to pay his or her debts when they fall due;
  5. an application is made (which is not dismissed within 10 Business Days) for an order, a resolution is passed or proposed, a meeting is convened or any other action is taken to cause anything described above; or
  6. anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs to the Supplier; or
    1. the Supplier suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business;
    2. the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
    3. the Supplier undergoes a Change of Control.
  7. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued prior to and as at the date of termination.
  8. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
  1. Consequences of Termination

On termination of the Contract for any reason, the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials to the Customer, to the extent that the same are not stored in backup IT systems where Supplier shall not be required to have to retrieve the same. Where the Supplier fails to deliver all Deliverables and Customer Materials to the Customer, then the Customer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

  1. PPSA

The Supplier must at its own expense do everything that the Customer requires which is necessary to enable the Customer to perfect, register or make enforceable any Security Interest which the Customer considers is constituted by or created under or in connection with the Contract or the Goods.

  1. Force Majeure
    1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from events, circumstances or causes beyond its reasonable control including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations; nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic; any law or any action taken by a Government or a public authority including without limitation imposing an export or import restriction, quota or prohibition, and the collapse of buildings, fire, explosion or accident (“Force Majeure Event“).
    2. The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
    3. If a Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than thirty (30) days, the Customer may terminate the Contract immediately by giving written notice to the Supplier.
  2. General
    1. Assignment and Other Dealings
      1. The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
      2. The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Customer.
    2. Notices
      1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid post or other next working day delivery service or commercial courier.
      2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 19.2(a); if sent by pre-paid post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting; or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
      3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
    3. Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

  1. Waiver 

A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

  1. No Partnership or Agency

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

  1. No Relationship of Employer and Employee

Nothing in the Contract is intended to, or shall be deemed to, establish any relationship of employer and employee between the parties.

  1. Third Parties
    1. Subject to cause 19.7(b), a person who is not a party to the Contract shall not have any rights to enforce its terms as though it were a party to it.
    2. The Customer and any member of its group may enforce the provisions of the Contract subject to and in accordance with clause 19.7(c).
    3. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any person that is not a party to the Contract.
  2. Variation

Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by both parties.

  1. Governing Law

The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (whether contractual or non-contractual in nature, such as claims in tort, from breach of statute or regulation or otherwise), shall be governed by, and construed in accordance with the law of New South Wales.

  1. Jurisdiction

Each party irrevocably agrees that the courts of New South Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or these Conditions or its subject matter or formation (including non-contractual disputes or claims).

 

 

Annual Compliance Certification

 

Supplier Annual Certification of Compliance with Hill & Smith Holdings PLC Code of Business Conduct, as updated by the Customer from time to time (together, the “Code”)

 

The following certification must be signed off annually to ensure that you remain compliant with the Code.

 

I…………………………………………………….  hereby certify that:

I will fulfil all of the requirements of clause 6 of the Conditions of the Contract.

I have reviewed, understand and will comply with the Code, which I have reviewed on the Hill and Smith Holdings PLC website. 

I understand the prohibitions in the Code against:

  • corruptly making, offering to make, agreeing to make, or authorizing any payment, loan, donation or gift of money or anything else of value, directly or indirectly, on behalf of the Customer or any Customer affiliate to or for the benefit of any “Public Official,” which includes: (i) any officer or employee, whether paid or unpaid, of a government, or any department or agency thereof; a state-owned or controlled enterprise; or a public international organization; (ii) members of royal families; (iii) any political party or party official or candidate for public or political party office; or (iv) any person acting in an official capacity on behalf of any of the foregoing, whether paid or unpaid;
  • maintaining a supply chain or any part of the Supplier’s business that practices slavery and/or human trafficking; and
  • using Conflict Minerals in any manufacturing or contract manufacturing activities or in the provision of the Goods or Services.

I am not aware of any violations of the Code.

I confirm that the information I have provided to the Customer in respect of any and all anti-bribery and corruption, Conflict Minerals and modern slavery matters, updates, policies, any questions the Customer has asked and any matters related to the Code remains true and accurate to the best of my knowledge and belief.

I confirm that I will immediately advise the Customer of any suspected or actual violation of the Code or any matters which could constitute breaches or violations of any laws and regulations to which I am subject in the performance of my obligations under this Contract, of which I become aware at any time.

 

Name:

Title:

Signature:

Date:

Terms & Conditions of Sale

Author: Hill & Smith Pty Ltd  
 Date Posted:17 December 2019 

Hill & Smith Pty Limited (ACN 153 144 364) – Terms and Conditions of Sale

  1. INTERPRETATION
    1.  In these Conditions

Business Day” means a day (other than a Saturday, Sunday or public holiday) in New South Wales, Australia;

Company” means Hill & Smith Pty Limited (ACN 153 144 364);                                                                                                                                    

Conditions” means these terms and conditions and any document referred to in these terms and conditions as amended by the Company from time to time;

Confidential Information” means the provisions of the Contract, including the Specification and the Price, and all information which is secret or otherwise not publicly available (in both cases either in its entirety or in part) including commercial, financial, marketing or technical information, know-how, trade secrets or business methods, in all cases whether disclosed orally or in writing before or after the date of the Contract;

Contract” means any contract between the Company and the Customer for the sale of Goods and/or provision of Services, incorporating these Conditions; 

Customer” means the person, firm, company or party who purchases the Goods and/or Services from the Company;

Customer Property” means all property supplied to the Company by or on behalf of the Customer which is held by the Company for the purposes of the Contract, or is in transit to or from the Customer;

Goods” means the goods, articles and materials (including any part or parts of them) set out in the Order;

GST” and “Goods and Services Tax” have the meanings ascribed to them by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as may be amended from time to time;

Intellectual Property Right” means any patent, copyright, trade mark, service mark or trade name, right in software, right in design, right in databases, image right, moral right, right in an invention, right relating to passing off, domain name, right in confidential information (including trade secrets) or right of privacy, and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which will exist in the future in any part of the world in each case whether registered or not and including any application for registration of the foregoing;

Order” means the Customer’s order for the supply of Goods and/or Services as may be set out in the Customer’s purchase order form, or the Customer’s written acceptance of the Company’s quotation, or in such form as the Company may determine from time to time; 

PPSA” means the Personal Properties Securities Act 2009 (Cth) and any subordinate legislation;

Price” means the price of the Goods and/or Services as defined in Condition 3(a);

Privacy Laws” means the Privacy Act 1988 (Cth) and any subordinate legislation;

Services” means the services supplied by the Company to the Customer as set out in the Order;

Specification” means the specification of the Goods and/or Services which is included or expressly referred to in the Contract;

Warranty Period” means 12 months from the delivery or deemed delivery of the Goods or performance or deemed performance of the Services;

  1. headings are inserted for convenience only and shall not affect the interpretation or construction of these Conditions;
  2. words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender. References to a person include a natural person, corporate or unincorporated body (whether or not having separate legal personality); 
  3. a reference to a party includes its successors or permitted assigns;
  4. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and
  5. any phrase introduced by the terms “other”, “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the generality of the words preceding or following those terms, and shall be deemed to be followed by the words “without limitation” unless the context requires otherwise. 
  1. BASIS OF CONTRACT
    1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
    2. The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions, which the Company may accept or reject in its absolute discretion. The Customer shall ensure that the terms of the Order are complete and accurate.
    3. The Order shall be deemed to be accepted by the Company when the Company issues a written acceptance of the Order or, (if earlier), the Company commences provision of the Services, manufacture of the Goods, their appropriation to the Customer’s order or dispatch of the Goods to the Customer. Any Order shall be accepted entirely at the discretion of the Company, at which point and on which date the Contract shall come into existence.
    4. Subject to Condition 2(f), the Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company, which is not set out in the Contract. 
    5. A quotation for the Goods and/or Services given by the Company shall not constitute an offer. Unless otherwise agreed in writing or withdrawn earlier by the Company in writing, a quotation shall only be valid for a period of 30 days from its date of issue.
    6. In case of conflict between these Conditions and the provisions of any supplemental trading terms agreed between the parties, these Conditions shall prevail.
    7. Any samples, drawings, descriptive matter or advertising the Company issues and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Company’s catalogues, brochures or other marketing material are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of these Conditions or have any contractual force. The Company will notify the Customer in writing of any material alterations to any specifications relating to the Goods and/or Services and the Customer shall be deemed to have accepted such alterations unless notice in writing to the contrary shall be received by the Company within 14 days of the Company’s notice to the Customer.
  2. PRICE AND PAYMENT
    1. The Price shall be the price set out in the Company’s quotation or estimate or, if no price is quoted, the price set out in the Company’s price list published on the date of delivery, or deemed date of delivery, of the Goods or date or performance, or deemed date of performance, of the Services.
    2. The Price is exclusive of GST or other similar taxes or levies, import and export duties and/or taxes, any other tax or duty, and all costs or charges in relation to packaging, labelling, loading, unloading, delivery, carriage, freight and insurance, all of which amounts the Customer will pay, where appropriate, in addition when it is due to pay the Price.
    3. The Company reserves the right to increase the Price by giving notice to the Customer, to reflect any increase in the Goods and/or Services to the Company that is due to:
      1. any factor beyond the Company’s control (including foreign exchange fluctuations, tax or duty increases, increase in supplier costs, increase in labour, materials or other manufacturing costs, or changes in any relevant laws);
      2. any request by the Customer to change the delivery date(s), quantity or type or design of Goods and/or Services ordered; and/or
      3. any delay caused by the Customer’s instructions in respect of the Goods and/or Services or the Customers failure to give the Company adequate or accurate information or instructions in respect of the Goods and/or Services.
    4. If performance of the Contract is suspended with the written agreement of the Company then the Customer shall pay the pro rata Price for Services already carried out, Goods supplied or ordered and any other additional costs incurred by the Company, including storage and insurance.
    5. In respect of Goods, the Company shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Company shall invoice the Customer on or at any time after the performance of the Services for or on behalf of the Customer.
    6. The Customer shall pay all invoices in full and cleared funds without any set-off, counterclaim, deduction, or withholding, within 30 days of the date of the invoice. Time for payment shall be of the essence. 
    7. The Company may at any time at its sole discretion require that payment is to be made by letter of credit. Where the Company specifies that payment is to be made by letter of credit, the Customer must establish and maintain in favour of the Company an irrevocable and unconditional letter of credit in a form satisfactory to the Company and issued and/or confirmed by an Australian domiciled bank which is acceptable to the Company. No delivery of the Goods or performance of the Services will take place until such a letter of credit has been issued and where appropriate confirmed and the Company is satisfied with all related arrangements. If for any reason payment is due under any letter of credit established for that purpose but not made, the Customer shall nevertheless remain liable to pay the Price. 
    8. No indulgence granted by the Company to the Customer concerning the Customer’s obligations under this Condition 3 shall be or be deemed to be a credit facility, but if any such facility is granted to the Customer by the Company, the Company may withdraw it at its sole discretion at any time.
    9. If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
      1. cancel or suspend its performance of the Contract or any Order including suspending deliveries of the Goods and suspending delivery of any other goods to the Customer and suspending provision of the Services or other services until arrangements as to payment or credit have been established which are satisfactory to the Company; 
      2. require the Customer to pay for Goods prior to their despatch or collection from the Company’s place of business; 
      3.                     suspend performance of Services remaining to be carried out; and/or
      4.                     charge the Customer:
        1. interest on the overdue amount from the due date until payment is made in full both before and after any judgment, at the prevailing rate under section 101 of the Civil Procedure Act 2005 (NSW) (accruing on a daily basis and compounded monthly); and 
        2. the cost of obtaining judgment, all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
          1. Where the Company suspends delivery of the Goods and/or performance of the Services pursuant to Conditions 3(i)(i) and (iii), any agreed time schedules shall be extended by a period equal to the period of such suspension without prejudice to any other remedy available to the Company.
          2. Unless otherwise agreed in writing, payment shall be made by the Customer in Australian dollars. No payment shall be deemed to have been received until the Company has received cleared funds.
    10. If the Customer fails to take delivery of the Goods, then:
      1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Company attempted delivery under Condition 4(a), as applicable; and
      2. the Company may store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
    11. If the Customer fails to collect or accept delivery of the Goods or any part thereof within 28 days of written notification from the Company that the Goods are ready for collection or delivery, the Company shall be entitled (without prejudice to its other remedies under the Contract for such breach) to sell, or at its option destroy, such Goods and to apply the proceeds of their sale and/or their scrap value if destroyed towards payment of all sums due to the Company under the Contract.
    12. Any times specified by the Company for delivery of the Goods or performance of the Services are intended to be an estimate only and time for delivery shall not be of the essence. 
    13. If the Company fails to dispatch or deliver the Goods or perform the Services by any specified times, such failure shall not constitute a breach of the Contract and the Company’s liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods or services of similar description and quality in the cheapest market available, less the Price.
    14. The Company shall have no liability for any failure to deliver the Goods or Services to the extent that such failure is caused due to circumstances beyond its reasonable control, the Customer’s failure to provide the Company with adequate delivery or site or other instructions for the Goods or Services or any relevant instruction related to the supply of the Goods or Services.
    15. Goods, once delivered, cannot be returned unless their return is agreed in advance in writing by the Company.
    16. Unless otherwise agreed in writing, the Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Company, the Customer shall make those licences and consents available to the Company prior to the relevant shipment.
    17. The Company shall be entitled at its discretion to make delivery of Goods or supply Services by instalments and to invoice the Customer for each instalment individually. Where Goods are delivered or Services are supplied by instalments each such instalment shall be deemed to be sold or supplied under a separate contract to which these Conditions shall apply. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
    18. The Customer agrees to comply fully, at its own expense, with all applicable import and export laws, restrictions, national security controls and regulations of the Commonwealth of Australia and any other applicable local law or regulation.
  3. TITLE AND RISK
    1. The Goods shall be at the risk of the Customer from the time of delivery or deemed delivery of the Goods in accordance with Condition 4(b). Any materials required to perform the Services shall be at the risk of the Customer from the time such materials are delivered, or deemed to be delivered, to the premises at which the Services are to be performed.
    2. If for any reason the Customer does not accept delivery of any of the Goods or materials for the Services when they are ready for delivery, or the Company is unable to deliver the Goods or materials for the Services on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
      1. the Goods or materials for the Services will be deemed to have been delivered, risk passing to the Customer (including for loss or damage caused by the Company’s negligence); and
      2. the Company may store the Goods or materials for the Services until actual delivery whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance).
    3. Full legal, beneficial and equitable title to and property in the Goods shall remain vested in the Company until:
      1. the Price and all other amounts due under the Contract have been received by the Company in cleared funds; and
      2. all other money payable by the Customer to the Company on any other account or under the Contract or any other contract has been received by the Company in cleared funds.
    4. Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer:
      1. the Company may at any time require the Customer to deliver the Goods up to the Company and/or recover and resell the Goods if any of the events specified in Condition 16 below shall occur and/or if any sum owed by the Customer to the Company under any Contract is not paid on the due date for payment. For the purpose of exercising its rights under this Condition 5(d)(i) the Company, its servants or agents together with all necessary and appropriate transport shall be entitled to free and unrestricted entry to the Customer’s premises and/or all other locations where the Goods are situated;
      2. the Customer shall hold the Goods on a fiduciary basis as bailee of the Company; 
      3. the Customer shall store the Goods for the Company in a proper manner without charge to the Company and ensure that they are stored separately from any other goods and are clearly identified as belonging to the Company. The Company shall (subject to giving reasonable notice) be entitled to examine the Goods in storage at any time during normal business hours; and
      4. the Company shall be entitled to maintain an action against the Customer for the Price, notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Customer.
    5. The Company may sell the Goods in the ordinary course of its business, but the Customer’s right of re-sale shall automatically cease upon the occurrence of any of the events referred to in Condition 16 below and/or if any sum owed by the Customer to the Company under any Contract is not paid on the due date for payment.
    6. Upon the re-sale of the Goods by the Customer the proceeds of sale thereof shall be received and held by the Customer in trust for the Company (and if so requested by the Company in writing, in a separate bank account in the names of the Company and the Customer) but the Customer shall be entitled to retain any excess over the amount then outstanding under this or any other Contract.
    7. Nothing in this Condition 5 shall entitle the Customer to return the Goods and/or materials or to delay payment.
    8. The rights and remedies conferred upon the Company by this Condition 5 are in addition to and shall not in any way prejudice, limit or restrict any other rights or remedies of the Company under the Contract.
    9. For the purposes of the PPSA, the following further provisions apply to the extent if any that the Company’s interests are regulated security interests and terms used in this Condition that are defined in the PPSA have the same meaning as in the PPSA where the context permits: 
      1. the Customer acknowledges and agrees that in each case the Company has a purchase money security interest attaching to the particular Goods covered by an Order to secure the payment by the Customer to the Company of the Price and any applicable credit charges and interest payable; 
      2. by taking delivery of Goods from the Company, the Customer agrees that a security agreement covers the Goods as set out in these provisions;
      3. the Customer must, if requested by the Company, effect (including by registration) a continuing security interest in the Company’s favour in any Goods that the Customer disposes of on credit terms, to better protect the Company’s security interests (and for these purposes, “registration” includes responding to any amendment demand and preparing and filing any financing change statement); 
      4. the Customer also acknowledges and agrees that even if separately described, calculated or specified, any amount (each, a price component) due to the Company in connection with the supply of the Goods is part of the Price for these purposes;  
      5. the Customer acknowledges that any price component is only separately described, calculated or specified as a convenient way of determining the Price and the Customer agrees that the Company may apply any payment from the Customer, as the Company chooses in the Company’s own interest including by applying a particular payment to or towards a payment or obligation that the Customer owes to the Company that is not secured by any security interest or to or towards payment for a particular item or particular items rather than to another item or other items; 
      6. the Customer must act immediately when requested by the Company to do such acts and provide such information as the Company reasonably considers necessary or desirable to enable the Company to perfect any security interest created or provided by these provisions in the Goods, or any proceeds, with first priority;
      7. the parties acknowledge and agree that section 95, section 130, section 132(3)(d), section 132(4), section 135(1)(a) and section 143 of the PPSA do not apply;
      8. the Customer waives its right under section 157 PPSA to receive a notice in relation to any registration event in connection with any collateral that is commercial property; 
      9. the collateral to which the security interest attaches in each case is respectively each of the items comprising the Goods and which as the case requires are items belonging to the “other goods” class of collateral or otherwise to the corresponding class or classes of collateral the Company may identify; and
      10. the collateral to which the security interests attach in each case includes but is not limited to any particular such item of the Goods that is or may be held by the Customer as inventory and also includes any proceeds of that collateral which proceeds the Customer agrees may be described in any relevant financing statement as “all present and after-acquired property”.
  4. TESTING AND INSPECTION
    1. Testing and inspection, if requested by the Customer in writing, shall be at the Company’s premises (at the Customer’s expense) and such testing and inspection shall be final and conclusive as to their results.
    2. The Company shall not be obliged to produce test and performance certificates or safety critical certificates unless agreed otherwise in writing.
    3. In addition to any costs incurred by the Company in testing the Goods, the Customer shall pay for all test pieces which comply with the Specification.
  5. SERVICES
    1. The Company shall use reasonable endeavours to meet any performance dates for the Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
    2. The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
    3. The Services will be deemed to be completed and the relevant element of the Price to be due and payable:
      1. when the Company issues a written notice to the Customer confirming such completion; or 
      2. if the Company is available to perform the Services but is prevented from doing so by reason of: 
  1. the lack of relevant assistance from the Customer (such as lack of availability of test components or parts from the Customer); and/or 
  2. the condition of the Customer’s premises or the site at which the Services are to be provided and/or the facilities at, or the services available therein, at the time agreed for the provision of the Services.
  1. WARRANTY
    1. Where any Goods and/or Services (or any part thereof) are shown by the Customer during the Warranty Period, to the reasonable satisfaction of the Company, not to comply materially with the Specification, the Company shall at its sole discretion:
      1. repair or make good such non-conformance free of charge to the Customer; or
      2. replace such Goods with goods which are in all respects in accordance with the Specification or re-perform such Services; or
      3. issue a credit note to the Customer in respect of the whole or part of the Price of such Goods or Services as appropriate having taken back such Goods or materials relating to such Goods or Services,

subject, in every case, to Conditions 8(b)(e) and (i) below, provided that, subject to Condition 10(d) below, the liability of the Company under this Condition 8 shall in no event exceed the Price of such Goods or Services and performance of any one of the above options shall constitute an entire discharge of the Company’s liability under this warranty.

  1. To the extent permitted by law, Condition 8(a) above shall not apply unless the Customer:
    1. notifies the Company in writing within 7 days of becoming aware of such non-conformance; 
    2. if so required by the Company, returns all defective Goods or materials relating to the Services to the Company’s premises, carriage paid by the Customer, for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods of such materials at the Customer’s premises or other location where they may be or where the Services were performed for such purposes; and
    3. has properly and correctly stored, installed and/or used the Goods.
  2. If the Company elects to replace the Goods or re-perform the Services pursuant to Condition 8(a), the Company shall deliver the replacement Goods to or re-perform the Services for the Customer at the Company’s own expense at the address to which the defective Goods were delivered and the legal, equitable and beneficial title to the defective Goods which are being replaced shall (if it has vested in the Customer) re-vest in the Company and the Customer shall make any arrangements as may be necessary to deliver up to the Company the defective Goods which are being replaced or materials relating to the previously performed Services.
  3. To the extent permitted by law, the Company shall be under no liability under the warranty at Condition 8(a):
    1. in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;
    2. if the total price for the Goods or Services has not been paid by the due date for payment;
    3. for any Goods manufactured or appropriated to the Contract in accordance with any design, specification, instruction or recommendation made to the Company by the Customer or for any Services provided in accordance with specifications, instructions or recommendation issued by the Customer;
    4. in respect of any type of defect, damage or wear specifically excluded by the Company by notice in writing; or
    5. if the Customer makes any further use of the Goods after giving notice in accordance with Condition 8(b).
  4. Insofar as the Goods comprise or contain equipment or components which were not manufactured or produced by the Company, the Customer shall be entitled only to such warranty or other benefit as the Company has received from the manufacturer.
  5. If, having carried out the necessary examinations and tests under this Condition 8, the Company believes (in its reasonable opinion) that the Goods do comply with the warranty set out in Condition 8, the Customer shall reimburse the Company for any reasonable costs that have been incurred in examining and testing the relevant Goods.
  6. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
  7. These Conditions shall apply to any repaired or replacement Goods or Services supplied by the Company; save that any such repaired or replacement Goods or Services shall only be warranted for the residual unexpired Warranty Period, if any.
  8. Statutory Notice for consumer transactions: The following notice applies only if and to the extent that the Customer is deemed by the Australian Consumer Law to be a “consumer” and its terms cannot be excluded by law: “The Company’s Goods come with guarantees that cannot be excluded under the Australian Consumer Law and the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure“.  
  1. CUSTOMER’S OBLIGATIONS
    1. The Customer shall:
      1. co-operate with the Company in all matters relating to the Services;
      2. provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
      3. provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
      4. prepare the Customer’s premises for the supply of the Services;
      5. comply with all applicable laws and any relevant anti-bribery and anti-slavery legislation;
      6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
      7. keep and maintain all materials, equipment, documents and other property of the Company (“Company Materials“) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and
      8. provide any other assistance reasonably required by the Company.
    2. It will be the responsibility of the Customer in cases where construction or erection is to take place at the Customer’s site, or at a site directed by the Customer (unless the Company agrees otherwise in writing), to ensure:
      1. adequate and accurate foundations, pad stones, holding down bolts to columns and similar items (being properly cast into the concrete or other material using taper boses or similar means to ensure the bolts are loose for alignment purposes) sufficient to support or hold the Company’s structures are provided prior to the Company’s arrival on site;
      2. firm and accurate building lines levels and positions are located and details given to the Company when it is ready to commence erection;
      3. all necessary scaffolding and other works and all necessary builders works (including works of cutting away and making good) are provided;
      4. the Customer, its employees, agents and sub-contractors shall observe all work rules and safety regulations applicable to the site; and
      5. the Customer will off load and store free of cost to the Company all Goods and materials if the Company has no servants or agents employed at the site at the time of delivery.
    3. If the Company’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default“):
      1. the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
      2. the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this Condition 8(c); and
      3. the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
  2. LIMITATION OF LIABILITY
    1. Subject to Condition 10(d) below, the Company is not liable, whether in contract, tort (including negligence or breach or statutory duty), misrepresentation or otherwise, howsoever arising, in connection with the Contract for any:
      1. direct or indirect loss of profit, loss of revenue, loss of business, loss of anticipated savings; or
      2. indirect, special or consequential loss or damage.
    2. Subject to Conditions 4(e)8(i)10(a) and (d), the total aggregate liability of the Company arising out of, or in connection with the performance or contemplated performance of the Contract, whether for negligence or breach of contract or any case whatsoever, shall in no event exceed the lower of: $1,000,000 (one million) (AUD); or 120% of the Price paid or payable to the Company.
    3. Each party agrees that the Price is set by the Company taking into account the limitation of the Company’s liability as set out in these Conditions. Each party agrees that the limitation of the Company’s liability as set out in these Conditions is reasonable. 
    4. Nothing in these Conditions shall exclude or limit the Company’s liability:
      1. for death or personal injury resulting from the negligence of the Company, its servants or agents; 
      2. for fraud or fraudulent misrepresentation; or
      3. to the extent that such liability cannot be excluded or limited by law.
  3. FORCE MAJEURE

If the Company’s ability to perform any of its obligations under the Contract is affected by any circumstances beyond its reasonable control (including act of God, fire, flood, lightening, compliance with any law or governmental order, rule, regulation or direction, war, revolution, act of terrorism, riot or civil commotion, strikes, lock-outs or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure) further performance of the Contract shall be suspended for so long as the Company is so affected provided that if the performance of the Contract shall be suspended for more than six consecutive calendar months the Customer shall be entitled by written notice to the Company to terminate the Contract or to cancel any outstanding part thereof and the Customer shall pay the pro rata Price for all Goods and Services supplied and materials used by the Company to the actual date of such termination. Subject to Condition 10(d) above, the Company shall not be liable for any direct, indirect or consequential or special loss or damage suffered by the Customer, howsoever arising, as a result of the Company’s inability to perform its obligations under the Contract due to circumstances beyond its reasonable control.

  1. CUSTOMER’S PROPERTY

All Customer Property shall be deemed to be entirely at the Customer’s risk and the Company shall not be liable for any loss of or damage to any Customer Property whilst it is in the possession of the Company or in transit unless such loss or damage is due directly to the negligence of the Company, its servants or agents. The Customer shall insure all Customer Property on an all risks basis.

  1. LIEN

Without prejudice to any other rights and remedies which the Company may have under the Contract, the Company shall in respect of all debts due and payable by the Customer to the Company have a general lien on all Goods and property belonging to the Customer in its possession (whether worked on or not) and shall be entitled upon the expiration of at least 14 days’ notice to the Customer, to dispose of such Goods or property as it thinks fit and to apply any proceeds of sale thereof towards the payment of such debts.

  1. HEALTH AND SAFETY

The Customer agrees to pay due regard to any information supplied by the Company relating to the use for which the Goods or product of the Services are designed or have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned, serviced or maintained by any person, and the Customer represents, warrants and undertakes to take such steps as may be specified by such information or otherwise necessary to ensure that as far as is reasonably practicable the Goods will be safe and without risk to the health of any person at all times as mentioned above and the Customer indemnifies the Company from and against all claims made and all liability, damages, losses, costs (including legal costs on a full indemnity basis) and expenses incurred by the Company to the extent arising from a breach by the Customer of this Condition 14.

  1. COMPLIANCE
    1. The Customer shall comply with all relevant anti-corruption legislation in connection with the Contract and the Company’s business and shall immediately notify the Company if it discovers or suspects that any of its officers, directors, employees or representatives are acting or have acted in a way which violates such legislation.
    2. The Customer acknowledges that the Company has a code of responsible business: The Hill & Smith Holdings PLC Code of Business Conduct (“HS Code of Conduct“). The HS Code of Conduct together with the Company’s Anti Bribery and Corruption Policy (“HS ABC Policy“) are available at www.hsholdings.co.uk and the Customer shall, at all times, conduct, and procure that its officers, directors, employees and/or representatives, conduct business ethically and in accordance with the relevant provisions of the HS Code of Conduct and the HS ABC Policy. This Condition 15 shall apply whether or not the Customer is acting pursuant to the Contract or its relationship with the Company.
    3. The Customer agrees that it must be able to demonstrate its compliance with the requirements referred to in this Condition 15 at the request of and to the satisfaction of the Company, which includes the Company having the right to inspect any site involved in work for the Company.  If the Customer fails to comply with this Condition 15, the Company shall be entitled, in its sole discretion, to terminate this Contract and any other contracts between the Customer and the Company without penalty to the Company, and the Customer shall indemnify the Company in full for any losses suffered by the Company as a result of such termination.
    4. The parties agree:
      1. to use their best endeavours and be duly diligent to:
  1. avoid the use in their business and its supply chains of any form of human trafficking, slavery, servitude or forced labour, to exploit children or any other person in Australia or elsewhere – including without limitation anything that would if done in New South Wales be a modern slavery offence under the Modern Slavery Act 2018 (NSW) (modern slavery); and
  2. identify the parts of their business and supply chains and those of their subcontractors and suppliers where there is a risk of modern slavery taking place and duly manage that risk;
    1. comply with all laws in connection with the avoidance or reduction of modern slavery;
    2. comply with any reasonable policy or direction notified to each other from time to time in relation to the avoidance of modern slavery in the parties’ business and supply chains and those of their subcontractors or suppliers; and
    3. promptly comply with all reasonable requests from one another for information in relation to each party’s compliance with this Condition 15(d).
  1. TERMINATION
    1. The Company shall be entitled, without prejudice to the Company’s other rights and remedies, either to terminate wholly or in part any or every Contract between the Company and the Customer and/or to suspend any further deliveries of Goods, or performance of Services, in any of the following circumstances:
      1. non-compliance by the Customer with the Company’s terms of payment set out in Condition 3 above; 
      2. the Customer has failed to provide a letter of credit or guarantee, bill of exchange or any other security required by the Contract;
      3. the Company becomes aware or is of the reasonable opinion that the Customer is in breach of Condition 15;
      4. where the Customer is a body corporate:
  1. an administrator, liquidator or provisional liquidator is appointed to the Customer;
  2. a receiver or receiver and manager is appointed to the Customer or any part of its property;
  3. the Customer enters into or proposes to enter into a deed of company arrangement or scheme of arrangement or a composition with, or assignment for the benefit of, all or any class of its creditors, or a moratorium involving any of them, otherwise than for the purpose of an amalgamation or reconstruction;
  4. the Customer becomes insolvent within the meaning of section 95A(2) of the Corporations Act 2001 (Cth);
  5. a winding up order is made in respect of the Customer or a resolution for the winding up of the Customer is passed or attempted to be passed, except for the purposes of reconstruction or amalgamation;
  6. an application is made (which is not dismissed within 10 Business Days) for an order, a resolution is passed or proposed, a meeting is convened or any other action is taken to cause anything described above, other than for the purposes of an amalgamation or reconstruction; 
  7. the Company forms the view that, or the Customer is or states that, the Customer is unable to pay its debts when they fall due; or 
  8. anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs to the Customer;
    1. where the Customer is a person:
  9. the Customer becomes bankrupt;
  10. an official manager is appointed to all or any part of the property of the Customer;
  11. the Customer enters into or proposes to enter into a scheme of arrangement or a composition with, or assignment for the benefit of, all or any class of its creditors, or a moratorium involving any of them;
  12. the Company forms the view that, or the Customer is or states that, the Customer is unable to pay his or her debts when they fall due;
  13. an application is made (which is not dismissed within 10 Business Days) for an order, a resolution is passed or proposed, a meeting is convened or any other action is taken to cause anything described above; or
  14. anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs to the Customer; or
    1. the Customer or any connected person commits any breach of this Contract or any other contract whenever made between the Customer and the Company.

 

  1. Termination of Contract shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
  2. On termination of the Contract for any reason the Customer shall immediately pay to the Company all outstanding unpaid invoices and interest and in respect of Services and Goods supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt and the Customer shall promptly:
    1. return to the Company all equipment, materials and property belonging to the Company that the Customer has in its custody;
    2. return to the Company all documents and materials (and      any copies)      containing the Company’s Confidential Information;
    3. erase all of the Company’s Confidential Information from its computer systems (to the extent possible); and
    4. on request, certify in writing to the other party that it has complied with the requirements of this Condition.
  3. On termination of the Contract, Conditions which expressly or by implication have effect after termination shall continue in full force and effect.
  1. INTELLECTUAL PROPERTY

Any Intellectual Property Rights created by the Company in the course of the performance of the Contract or otherwise in the manufacture of the Goods or provision of the Services shall remain the Company’s property. Nothing in the Contract shall be deemed to have given the Customer a licence or any other right to use any of the Intellectual Property Rights of the Company.

  1. CONFIDENTIALITY

The Customer shall keep and procure to be kept secret and confidential all Confidential Information disclosed to it or obtained by it as a result of the relationship of the parties under the Contract and shall not use or disclose the same, save for the purposes of the proper performance of the Contract or with the prior written consent of the Company.

  1. PRIVACY
    1. To the extent that the Customer and the Company respectively collect personal information about one another, their businesses and personnel (“Personal Information”) they shall at all times abide by the Privacy Laws in the handling of that Personal Information. 
    2. The Customer acknowledges and agrees that the Company may transfer Personal Information to other companies to related bodies corporate of the Company, to credit rating agencies and other third parties engaged by the Company in accordance with the Company’s legitimate business needs including for the purpose of obtaining credit reports about the Customer, its directors and guarantors for the purpose of assessing creditworthiness and for the purpose of exchanging Personal Information with other credit agencies in case of any default by the Customer or its guarantors..
  2. NOTICES
    1. Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid post or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.
    2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such address, if sent by prepaid post, at 10.00 am on the second Business Day, after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. 
  3. GENERAL
    1. If at any time any one or more of the provisions of these Conditions become invalid, illegal or unenforceable in any respect under any law, the validity and enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired thereby.
    2. Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
    3. The rights and remedies of the Company under the Contract shall not be diminished waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.
    4. The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Company. 
    5. The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person.
    6. Subject to Condition 21(g) below, a person who is not a party to the Contract has no rights  to enforce any provision of the Contract.
    7. The Company and any member of its group may enforce the provisions of this Contract subject to and in accordance with Condition 21(h).
    8. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Contract are not subject to the consent of any person that is not a party to this Contract.
  4. GOVERNING LAW AND DISPUTES
    1. The Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of New South Wales, Australia.
    2. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia and courts that have the right to hear appeals therefrom.
    3. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Conditions or the Contract.
  5. LANGUAGE

The Contract is drafted and entered into in the English language. All amendments to the Contract and all other documents provided under or in connection with the Contract shall be in the English language. If the Contract, or any documents provided under or in connection with the Contract, are translated into any other language, the English language version shall prevail.

 

 

 

Important:  If YOU DO NOT UNDERSTAND THIS Guarantee and Indemnity,
           You SHOULD seek  independent legal advice before YOU sign.

DOWNLOAD CREDIT APPLICATION FORM HERE

Terms & Conditions of Equipment Hire
Author: Hill & Smith Pty Ltd  
Date Posted:25 November 2020 

Hill & Smith Pty Limited (ABN 78 153 144 364) – Terms and Conditions of Hire

1   INTERPRETATION

(a)       In these Conditions

Business Day” means a day (other than a Saturday, Sunday or public holiday) in New South Wales, Australia;

Company” means Hill & Smith Pty Limited (ACN 153 144 364);

Conditions” means these terms and conditions and any document or schedule referred to in these terms and conditions as amended by the Company from time to time;

Confidential Information” means the provisions of the Contract, including the Specification and the Rental Payments, and all information which is secret or otherwise not publicly available (in both cases either in its entirety or in part) including commercial, financial, marketing or technical information, know-how, trade secrets or business methods, in all cases whether disclosed orally or in writing before or after the date of the Contract;

Contract” means any contract between the Company and the Customer for the hire of Goods and/or provision of Services, incorporating these Conditions;

COSHH” means control of substances hazardous to health;

Customer” means the person, firm, company or party who hires the Goods and/or purchases the Services from the Company;

Customer Property” means all property supplied to the Company by or on behalf of the Customer which is held by the Company for the purposes of the Contract, or is in transit to or from the Customer;

Goods” means the goods, articles and materials (including any part or parts of them) set out in the Order;

GST” and “Goods and Services Tax” have the meanings ascribed to them by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as may be amended from time to time;

Intellectual Property Right” means any patent, copyright, trade mark, service mark or trade name, right in software, right in design, right in databases, image right, moral right, right in an invention, right relating to passing off, domain name, right in confidential information (including trade secrets) or right of privacy, and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which will exist in the future in any part of the world in each case whether registered or not and including any application for registration of the foregoing;

Order” means the Customer’s order for the supply of Goods and/or Services as may be set out in the Customer’s purchase order form, or the Customer’s written acceptance of the Company’s quotation, or in such form as the Company may determine from time to time;

“PPSA” means the Personal Properties Securities Act 2009 (Cth) and any subordinate legislation;

Privacy Laws” means the Privacy Act 1988 (Cth) and any subordinate legislation;

Rental Payments” means the payments for the hire of Goods and/or purchase of Services as defined in Condition 3(a);

Rental Period” means the period of hire for Goods set out in the Specification and commencing on the time and date or deemed date of delivery of the Goods as may be extended by agreement of the Company pursuant to Condition 23;

Risk Period” means the Rental Period plus any further term during which the Goods are in the possession, custody or control of the Customer;

Services” means the services supplied by the Company to the Customer as set out in the Order;

Specification” means the specification of the Goods and/or Services which is included or expressly referred to in the Contract;

Total Loss” means the Goods are, in the Company’s sole opinion, damaged beyond repair, lost, stolen, seized or confiscated;

Warranty Period” means 12 months from the delivery or deemed delivery of the Goods or performance or deemed performance of the Services;

(b)      headings are inserted for convenience only and shall not affect the interpretation or construction of these Conditions;

(c)      references to “Conditions” and “Schedules” are to conditions of, and schedules to, these Conditions;

(d)      words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender. References to a person include a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(e)      a reference to a party includes its successors or permitted assigns;

(f)       a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and

(g)      any phrase introduced by the terms “other”, “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the generality of the words preceding or following those terms, and shall be deemed to be followed by the words “without limitation” unless the context requires otherwise.

2   BASIS OF CONTRACT

(a)      These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.

(b)      The Order constitutes an offer by the Customer to hire the Goods and/or purchase Services in accordance with these Conditions, which the Company may accept or reject in its absolute discretion. The Customer shall ensure that the terms of the Order are complete and accurate.

(c)      The Order shall be deemed to be accepted by the Company when the Company issues a written acceptance of the Order or, (if earlier), the Company commences provision of the Services, manufacture of the Goods, their appropriation to the Customer’s order or dispatch of the Goods to the Customer. Any Order shall be accepted entirely at the discretion of the Company, at which point and on which date the Contract shall come into existence.

(d)      Subject to Condition 2(f), the Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company, which is not set out in the Contract.

(e)      A quotation for the hire of Goods and/or provision of Services given by the Company shall not constitute an offer. Unless otherwise agreed in writing or withdrawn earlier by the Company in writing, a quotation shall only be valid for a period of 30 days from its date of issue.

(f)       In case of conflict between these Conditions and the provisions of any supplemental trading terms agreed between the parties, these Conditions shall prevail.

(g)      Any samples, drawings, descriptive matter or advertising the Company issues and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Company’s catalogues, brochures or other marketing material are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of these Conditions or have any contractual force. The Company will notify the Customer in writing of any material alterations to any specifications relating to the Goods and/or Services and the Customer shall be deemed to have accepted such alterations unless notice in writing to the contrary shall be received by the Company within 14 days of the Company’s notice to the Customer.

3   PRICE AND PAYMENT

(a)      The Rental Payments shall be the amounts payable on commencement of the Rental Period and as set out in the Company’s quotation or estimate or, if no amounts are quoted, the amounts set out in the Company’s hire price list published on the date of delivery, or deemed date of delivery, of the Goods or date or performance, or deemed date of performance, of the Services.

(b)      The Rental Payments are exclusive of GST or other similar taxes or levies, import and export duties and/or taxes, any other tax or duty, and all costs or charges in relation to packaging, labelling, loading, unloading, delivery, carriage, freight and insurance, all of which amounts the Customer will pay, where appropriate, in addition when it is due to pay the Rental Payments.

(c)      The Company reserves the right to increase the Rental Payments by giving notice to the Customer, to reflect any increase in the Goods and/or Services to the Company that is due to:

(i)       any factor beyond the Company’s control (including foreign exchange fluctuations, tax or duty increases, increase in supplier costs, increase in labour, materials or other manufacturing costs, or changes in any relevant laws);

(ii)       any request by the Customer to change the delivery date(s), quantity or type or design of Goods and/or Services ordered; and/or

(iii)      any delay caused by the Customer’s instructions in respect of the Goods and/or Services or the Customers failure to give the Company adequate or accurate information or instructions in respect of the Goods and/or Services.

(d)      If performance of the Contract is suspended with the written agreement of the Company then the Customer shall pay the pro rata Rental Payments for Services already carried out, Goods supplied or ordered and any other additional costs incurred by the Company, including storage and insurance.

(e)      In respect of Goods, the Company shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Company shall invoice the Customer on or at any time after the performance of the Services for or on behalf of the Customer.

(f)       The Customer shall pay all invoices in full and cleared funds without any set-off, counterclaim, deduction, or withholding, within 30 days of the date of the invoice. Time for payment shall be of the essence.

(g)      The Company may at any time at its sole discretion require that payment is to be made by letter of credit. Where the Company specifies that payment is to be made by letter of credit, the Customer must establish and maintain in favour of the Company an irrevocable and unconditional letter of credit in a form satisfactory to the Company and issued and/or confirmed by an Australian domiciled bank which is acceptable to the Company. No delivery of the Goods or performance of the Services will take place until such a letter of credit has been issued and where appropriate confirmed and the Company is satisfied with all related arrangements. If for any reason payment is due under any letter of credit established for that purpose but not made, the Customer shall nevertheless remain liable to pay the Rental Payments.

(h)      No indulgence granted by the Company to the Customer concerning the Customer’s obligations under this Condition 3 shall be or be deemed to be a credit facility, but if any such facility is granted to the Customer by the Company, the Company may withdraw it at its sole discretion at any time.

(i)       If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:

(i)       cancel or suspend its performance of the Contract or any Order including suspending deliveries of the Goods and suspending delivery of any other goods to the Customer and suspending provision of the Services or other services until arrangements as to payment or credit have been established which are satisfactory to the Company;

(ii)       require the Customer to pay the Rental Payments for the entire Rental Period prior to the despatch or collection from the Company’s place of business of any Goods;

(iii)                          suspend performance of Services remaining to be carried out; and/or

(iv)                          charge the Customer:

1.       interest on the overdue amount from the due date until payment is made in full both before and after any judgment, at the prevailing rate under section 101 of the Civil Procedure Act 2005 (NSW)  (accruing on a daily basis and compounded monthly); and

2.       the cost of obtaining judgment, all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.

(v)      Where the Company suspends delivery of the Goods and/or performance of the Services pursuant to Conditions 3(i)(i) and (iii), any agreed time schedules shall be extended by a period equal to the period of such suspension without prejudice to any other remedy available to the Company.

(vi)      Unless otherwise agreed in writing, payment shall be made by the Customer in Australian dollars. No payment shall be deemed to have been received until the Company has received cleared funds.

4   DELIVERY AND ACCEPTANCE

(a)      Delivery of the Goods shall, where the Contract designates a delivery point in Australia, be the Company’s trading address from time to time unless otherwise agreed in writing by the parties.

(b)      If the Customer fails to take delivery of the Goods, then:

(i)       delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Company attempted delivery under Condition 4(a), as applicable; and

(ii)       the Company may store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

(c)      If the Customer fails to collect or accept delivery of the Goods or any part thereof within 28 days of written notification from the Company that the Goods are ready for collection or delivery, the Company shall be entitled (without prejudice to its other remedies under the Contract for such breach) to sell, hire to another customer, or at its option destroy, such Goods and to apply the proceeds of their sale and/or their scrap value if destroyed towards payment of all sums due to the Company under the Contract.

(d)      Any times specified by the Company for delivery of the Goods or performance of the Services are intended to be an estimate only and time for delivery shall not be of the essence.

(e)      If the Company fails to dispatch or deliver the Goods or perform the Services by any specified times, such failure shall not constitute a breach of the Contract and the Company’s liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods or services of similar description and quality in the cheapest market available, less the Rental Payments for the entire Rental Period.

(f)       The Company shall have no liability for any failure to deliver the Goods or Services to the extent that such failure is caused due to circumstances beyond its reasonable control, the Customer’s failure to provide the Company with adequate delivery or site or other instructions for the Goods or Services or any relevant instruction related to the supply of the Goods or Services.

(g)      Goods, once delivered, cannot be returned during the Rental Period unless their return is agreed in advance in writing by the Company.

(h)      Unless otherwise agreed in writing, the Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Company, the Customer shall make those licences and consents available to the Company prior to the relevant shipment.

(i)       The Company shall be entitled at its discretion to make delivery of Goods or supply Services by instalments and to invoice the Customer for each instalment individually. Where Goods are delivered or Services are supplied by instalments each such instalment shall be deemed to be delivered or supplied under a separate contract to which these Conditions shall apply. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

(j)       The Customer agrees to comply fully, at its own expense, with all applicable import and export laws, restrictions, national security controls and regulations of the Commonwealth of Australia and any other applicable local law or regulation.

5   TITLE AND RISK

(a)      The Goods shall be at the risk of the Customer during the Risk Period. Any materials required to perform the Services shall be at the risk of the Customer from the time such materials are delivered, or deemed to be delivered, to the premises at which the Services are to be performed.

(b)      If for any reason the Customer does not accept delivery of any of the Goods or materials for the Services when they are ready for delivery, or the Company is unable to deliver the Goods or materials for the Services on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:

(i)       the Goods or materials for the Services will be deemed to have been delivered, risk passing to the Customer (including for loss or damage caused by the Company’s negligence); and

(ii)       the Company may store the Goods or materials for the Services until actual delivery whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance).

(c)      Full legal, beneficial and equitable title to and property in the Goods at all times remain vested in the Company and the Customer shall have no right, title or interest in or to the Goods (save the right to possession and use of the Goods subject to these Conditions).

(d)      For the duration of the Risk Period:

(i)       the Company may at any time require the Customer to deliver the Goods up to the Company and/or recover the Goods if any of the events specified in Condition 17 below shall occur and/or if any sum owed by the Customer to the Company under any Contract is not paid on the due date for payment. For the purpose of exercising its rights under this Condition 5 the Company, its servants or agents together with all necessary and appropriate transport shall be entitled to free and unrestricted entry to the Customer’s premises and/or all other locations where the Goods are situated;

(ii)       the Customer shall hold the Goods on a fiduciary basis as bailee of the Company;

(iii)      where appropriate, the Customer shall store the Goods for the Company in a proper manner without charge to the Company and ensure that they are stored separately from any other goods and are clearly identified as belonging to the Company. The Company shall (subject to giving reasonable notice) be entitled to examine the Goods in storage at any time during normal business hours; and

(iv)      the Company shall be entitled to maintain an action against the Customer for the Rental Payments, notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Customer.

(e)      Nothing in this Condition 5 shall entitle the Customer to return the Goods and/or materials during the Rental Period or to delay payment.

(f)       The rights and remedies conferred upon the Company by this Condition 5 are in addition to and shall not in any way prejudice, limit or restrict any other rights or remedies of the Company under the Contract.

(g)      For the purposes of the PPSA, the following further provisions apply to the extent if any that the Company’s interests are regulated security interests and terms used in this Condition that are defined in the PPSA have the same meaning as in the PPSA where the context permits:

(i)       the Customer acknowledges and agrees that in each case the Company has a purchase money security interest attaching to the particular Goods covered by an Order to secure the return of the Goods and the payment by the Customer to the Company of the Price and any applicable credit charges and interest payable;

(ii)       by taking delivery of Goods from the Company, the Customer agrees that a security agreement covers the Goods as set out in these provisions;

(iii)      the Customer also acknowledges and agrees that even if separately described, calculated or specified, any amount (each, a price component) due to the Company in connection with the hire of the Goods or the provision of Services is part of the Rental Payments for these purposes; 

(iv)      the Customer acknowledges that any price component is only separately described, calculated or specified as a convenient way of determining the Rental Payments and the Customer agrees that the Company may apply any payment from the Customer, as the Company chooses in the Company’s own interest including by applying a particular payment to or towards a payment or obligation that the Customer owes to the Company that is not secured by any security interest or to or towards payment for a particular item or particular items rather than to another item or other items;

(v)      the Customer must act immediately when requested by the Company to do such acts and provide such information as the Company reasonably considers necessary or desirable to enable the Company to perfect any security interest created or provided by these provisions in the Goods, or any proceeds, with first priority;

(vi)      the parties acknowledge and agree that section 95, section 130, section 132(3)(d), section 132(4), section 135(1)(a) and section 143 of the PPSA do not apply;

(vii)     the Customer waives its right under section 157 PPSA to receive a notice in relation to any registration event in connection with any collateral that is commercial property; and

(viii)     the collateral to which the security interest attaches in each case is respectively each of the items comprising the Goods and which as the case requires are items belonging to the “other goods” class of collateral or otherwise to the corresponding class or classes of collateral the Company may identify.

 

6   TESTING AND INSPECTION

(a)      Testing and inspection, if requested by the Customer in writing, shall be at the Company’s premises (at the Customer’s expense) and such testing and inspection shall be final and conclusive as to their results.

(b)      The Company shall not be obliged to produce test and performance certificates or safety critical certificates unless agreed otherwise in writing.

(c)      In addition to any costs incurred by the Company in testing the Goods, the Customer shall pay for all test pieces which comply with the Specification.

7   SERVICES

(a)      The Company shall use reasonable endeavours to meet any performance dates for the Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

(b)      Performance of the Services by the Company is subject to and based on a mutually agreeable programme for the Services.

(c)      The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.

(d)      The Services will be deemed to be completed and the relevant element of the Rental Payments to be due and payable:

(i)       when the Company issues a written notice to the Customer confirming such completion; or

(ii)       if the Company is available to perform the Services but is prevented from doing so by reason of:

1.       the lack of relevant assistance from the Customer (such as lack of availability of test components or parts from the Customer); and/or

2.       the condition of the Customer’s premises or the site at which the Services are to be provided and/or the facilities at, or the services available therein, at the time agreed for the provision of the Services.

8   WARRANTY

(a)      Where any Goods and/or Services (or any part thereof) are shown by the Customer during the Warranty Period, to the reasonable satisfaction of the Company, not to comply materially with the Specification, the Company shall at its sole discretion:

(i)       repair or make good such non-conformance free of charge to the Customer; or

(ii)       replace such Goods with goods which are in all respects in accordance with the Specification or re-perform such Services; or

(iii)      issue a credit note to the Customer in respect of the whole or part of the Rental Payments of such Goods or Services as appropriate having taken back such Goods or materials relating to such Goods or Services,

subject, in every case, to Conditions 8(b), (e) and (i) below, provided that, subject to Condition 11(d) below, the liability of the Company under this Condition 8 shall in no event exceed the Rental Payments of such Goods or Services and performance of any one of the above options shall constitute an entire discharge of the Company’s liability under this warranty.

(b)      To the extent permitted by law, Condition 8(a) above shall not apply unless the Customer:

(i)       notifies the Company in writing within 7 days of becoming aware of such non-conformance;

(ii)       if so required by the Company, returns all defective Goods or materials relating to the Services to the Company’s premises, carriage paid by the Customer, for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods of such materials at the Customer’s premises or other location where they may be or where the Services were performed for such purposes; and

(iii)      has properly and correctly stored, installed and/or used the Goods.

(c)      If the Company elects to replace the Goods or re-perform the Services pursuant to Condition 8(a), the Company shall deliver the replacement Goods to or re-perform the Services for the Customer at the Company’s own expense at the address to which the defective Goods were delivered and the Customer shall make any arrangements as may be necessary to deliver up to the Company the defective Goods which are being replaced or materials relating to the previously performed Services.

(d)      To the extent permitted by law, the Company shall be under no liability under the warranty at Condition 8(a):

(i)       in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;

(ii)       if the relevant Rental Payments for the Goods and/or Services have not been paid by the due date for payment;

(iii)      for any Goods manufactured or appropriated to the Contract in accordance with any design, specification, instruction or recommendation made to the Company by the Customer or for any  Services provided in accordance with specifications, instructions or recommendation issued by the Customer;

(iv)      in respect of any type of defect, damage or wear specifically excluded by the Company by notice in writing; or

(v)      if the Customer makes any further use of the Goods after giving notice in accordance with Condition 8(b).

(e)      Insofar as the Goods comprise or contain equipment or components which were not manufactured or produced by the Company, the Customer shall be entitled only to such warranty or other benefit as the Company has received from the manufacturer.

(f)       If, having carried out the necessary examinations and tests under this Condition 8, the Company believes (in its reasonable opinion) that the Goods do comply with the warranty set out in Condition 8, the Customer shall reimburse the Company for any reasonable costs that have been incurred in examining and testing the relevant Goods.

(g)      Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

(h)      These Conditions shall apply to any repaired or replacement Goods or Services supplied by the Company; save that any such repaired or replacement Goods or Services shall only be warranted for the residual unexpired Warranty Period, if any.

(i)       Statutory Notice for consumer transactions: The following notice applies only if and to the extent that the Customer is deemed by the Australian Consumer Law to be a “consumer” and its terms cannot be excluded by law: “The Company’s Goods come with guarantees that cannot be excluded under the Australian Consumer Law and the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure“.

9   CUSTOMER’S OBLIGATIONS

(a)      In relation to the Goods and for the duration of this Contract the Customer shall:

(i)       ensure that the Goods are kept and operated in a suitable environment, used only for the purposes for which they are designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by the Company from time to time;

(ii)       take such steps (including compliance with all safety and usage instructions provided by the Company from time to time) as may be necessary to ensure that the Goods are at all times safe and without risk to health when they are being set, used, cleaned or maintained by a person at work;

(iii)      maintain at its own expense the Goods in good and substantial repair in order to keep them in as good an operating condition as they were on the date of this Contract including replacement of worn, damaged and lost parts, and shall make good any damage to the Goods;

(iv)      make no alteration to the Goods and shall not remove any existing component(s) from the Goods without the prior written consent of the Company, unless the component(s) is/are replaced immediately by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Goods shall vest in the Company immediately upon installation;

(v)      keep the Company fully informed of all material matters relating to the Goods;

(vi)      keep the Goods at all times at the site at which they were installed and shall not move or attempt to move any part of the Goods to any other location without the Company’s prior written consent;

(vii)     permit the Company or its duly authorised representative to inspect the Goods at all reasonable times and for such purpose to enter upon the site or any premises at which the Goods may be located, and shall grant reasonable access and facilities for such inspection;

(viii)     maintain operating and maintenance records of the Goods and make copies of such records readily available to the Company, together with such additional information as the Company may reasonably require;

(ix)      not, without the prior written consent of the Company, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Goods or allow the creation of any mortgage, charge, lien or other security interest in respect of them;

(x)      not, without the prior written consent of the Company, attach the Goods to any land or building so as to cause the Goods to become a permanent or immovable fixture on such land or building. If the Goods do become affixed to any land or building then the Goods must be capable of being removed without material injury to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Goods from any land or building and indemnify the Company against all losses, costs or expenses incurred as a result of such affixation or removal;

(xi)      not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Company in the Goods and, where the Goods have become affixed to any land or building, the Customer must take all necessary steps to ensure that the Company may enter such land or building and recover the Goods both during the term of this Contract and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Company of any rights such person may have or acquire in the Goods and a right for the Company to enter onto such land or building to remove the Goods;

(xii)     not suffer or permit the Goods to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Goods are so confiscated, seized or taken, the Customer shall immediately notify the Company and the Customer shall at its sole expense procure an immediate release of the Goods and shall indemnify the Company on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;

(xiii)     not use the Goods for any unlawful purpose;

(xiv)    ensure that at all times the Goods remain identifiable as being the Company’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Goods;

(xv)     deliver up the Goods at the end of the Rental Period or on earlier termination of this Contract at such address as the Company requires, or if necessary allow the Company or its representatives access to any site or any premises where the Goods are located for the purpose of removing the Goods;

(xvi)    and shall ensure its employees, agents and sub-contractors shall, observe all work rules and safety regulations applicable to the Goods or Services; and

(xvii)    not do or permit to be done anything which could invalidate the insurances referred to in Condition 10.

(b)      The Customer acknowledges that the Company shall not be responsible for any loss of or damage to the Goods arising out of or in connection with any negligence, misuse, mishandling of the Goods or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer undertakes to indemnify the Company on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer to comply with the terms of the Contract.

(c)      The Customer shall:

(i)       co-operate with the Company in all matters relating to the Services;

(ii)       provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities (including but not limited to welfare facilities) as reasonably required by the Company to provide the Services;

(iii)      provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

(iv)      prepare the Customer’s premises for the supply of the Services;

(v)      comply with all applicable laws and any relevant anti-bribery and anti-slavery legislation;

(vi)      obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; including but not limited to permits to break ground;

(vii)     keep and maintain all materials, equipment, documents and other property of the Company (“Company Materials“) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation;

(viii)     reinstate all anchor holes;

(ix)      identify all known underground services, apparatus or artificial obstructions and ensure they are clearly visible at night and be uncovered or removed as deemed necessary to allow the Company to undertake the Services;

(x)      provide all relevant COSHH data to the Company prior to Services commencing on site;

(xi)      be responsible for all site setting out;

(xii)     provide a minimum 7-hour uninterrupted working window for each shift required to perform the Services;

(xiii)     provide all temporary traffic management systems including the necessary safety zones and working space to facilitate the safe installation and removal of Goods and the performance of Services; and

(xiv)    provide any other assistance reasonably required by the Company.

(d)      It will be the responsibility of the Customer in cases where construction or erection is to take place at the Customer’s site, or at a site directed by the Customer (unless the Company agrees otherwise in writing), to ensure:

(i)       adequate and accurate foundations, pad stones, holding down bolts to columns and similar items (being properly cast into the concrete or other material using taper boses or similar means to ensure the bolts are loose for alignment purposes) sufficient to support or hold the Company’s structures are provided prior to the Company’s arrival on site;

(ii)       firm and accurate building lines levels and positions are located and details given to the Company when it is ready to commence erection;

(iii)      all necessary scaffolding and other works and all necessary builders works (including works of cutting away and making good) are provided; and

(iv)      the Customer will off load and store free of cost to the Company all Goods and materials if the Company has no servants or agents employed at the site at the time of delivery.

(e)      If the Company’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default“):

(i)       the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;

(ii)       the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this Condition 9(e); and

(iii)      the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.

10 INSURANCE

(a)      For the duration of the Risk Period the Customer shall, at its own expense, obtain and maintain the following insurances:

(i)       insurance of the Goods to a value not less than their full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Company may from time to time nominate in writing;

(ii)       insurance for such amounts as a prudent owner or operator of the Goods would insure for, or such amount as the Company may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Goods; and

(iii)      insurance against such other or further risks relating to the Goods as may be required by law, together with such other insurance as the Company may from time to time consider reasonably necessary and advise to the Customer.

(b)      All insurance policies procured by the Customer shall be endorsed to provide the Company with at least 1 months’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Company’s request name the Company on the policies as a loss payee in relation to any claim relating to the Goods. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.

(c)      The Customer shall give immediate written notice to the Company in the event of any loss, accident or damage to the Goods arising out of or in connection with the Customer’s possession or use of the Goods.

(d)      If the Customer fails to effect or maintain any of the insurances required under this Contract, the Company shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.

(e)      The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Company and proof of premium payment to the Company to confirm the insurance arrangements.

11 LIMITATION OF LIABILITY

(a)      Subject to Condition 11(d) below, the Company is not liable, whether in contract, tort (including negligence or breach or statutory duty), misrepresentation or otherwise, howsoever arising, in connection with the Contract for any:

(i)       direct or indirect loss of profit, loss of revenue, loss of business, loss of anticipated savings; or

(ii)       indirect, special or consequential loss or damage.

(b)      Subject to Conditions 4(e), 8(i), 11(a)and 11(d), the total aggregate liability of the Company arising out of, or in connection with the performance or contemplated performance of the Contract, whether for negligence or breach of contract or any case whatsoever, shall in no event exceed 120% of the Rental Payments paid or payable to the Company.

(c)      Each party agrees that the Rental Payments are set by the Company taking into account the limitation of the Company’s liability as set out in these Conditions. Each party agrees that the limitation of the Company’s liability as set out in these Conditions is reasonable.

(d)      Nothing in these Conditions shall exclude or limit the Company’s liability:

(i)       for death or personal injury resulting from the negligence of the Company, its servants or agents;

(ii)       for fraud or fraudulent misrepresentation; or

(iii)      to the extent that such liability cannot be excluded or limited by law.

12 FORCE MAJEURE

If the Company’s ability to perform any of its obligations under the Contract is affected by any circumstances beyond its reasonable control (including act of God, fire, flood, lightening, compliance with any law or governmental order, rule, regulation or direction, war, revolution, act of terrorism, riot or civil commotion, strikes, lock-outs or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure) further performance of the Contract shall be suspended for so long as the Company is so affected provided that if the performance of the Contract shall be suspended for more than six consecutive calendar months the Customer shall be entitled by written notice to the Company to terminate the Contract or to cancel any outstanding part thereof and the Customer shall pay the pro rata Rental Payments for all Goods and Services supplied and materials used by the Company to the actual date of such termination. Subject to Condition 11(d) above, the Company shall not be liable for any direct, indirect or consequential or special loss or damage suffered by the Customer, howsoever arising, as a result of the Company’s inability to perform its obligations under the Contract due to circumstances beyond its reasonable control.

13 CUSTOMER’S PROPERTY

All Customer Property shall be deemed to be entirely at the Customer’s risk and the Company shall not be liable for any loss of or damage to any Customer Property whilst it is in the possession of the Company or in transit unless such loss or damage is due directly to the negligence of the Company, its servants or agents. The Customer shall insure all Customer Property on an all risks basis.

14 LIEN

Without prejudice to any other rights and remedies which the Company may have under the Contract, the Company shall in respect of all debts due and payable by the Customer to the Company have a general lien on all Goods and property belonging to the Customer in its possession (whether worked on or not) and shall be entitled upon the expiration of at least 14 days’ notice to the Customer, to dispose of such Goods or property as it thinks fit and to apply any proceeds of sale thereof towards the payment of such debts.

15 HEALTH AND SAFETY

The Customer agrees to pay due regard to any information supplied by the Company relating to the use for which the Goods or product of the Services are designed or have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned, serviced or maintained by any person, and the Customer represents, warrants and undertakes to take such steps as may be specified by such information or otherwise necessary to ensure that as far as is reasonably practicable the Goods will be safe and without risk to the health of any person at all times as mentioned above and the Customer indemnifies the Company from and against all claims made and all liability, damages, losses, costs (including legal costs on a full indemnity basis) and expenses incurred by the Company to the extent arising from a breach by the Customer of this Condition 15.

16 COMPLIANCE

(a)      The Customer shall comply with all relevant anti-corruption legislation in connection with the Contract and the Company’s business and shall immediately notify the Company if it discovers or suspects that any of its officers, directors, employees or representatives are acting or have acted in a way which violates such legislation.

(b)      The Customer acknowledges that the Company has a code of responsible business: The Hill & Smith Holdings PLC Code of Business Conduct (“HS Code of Conduct“). The HS Code of Conduct together with the Company’s Anti Bribery and Corruption Policy (“HS ABC Policy“) are available at www.hsholdings.co.uk and the Customer shall, at all times, conduct, and procure that its officers, directors, employees and/or representatives, conduct business ethically and in accordance with the relevant provisions of the HS Code of Conduct and the HS ABC Policy. This Condition 16 shall apply whether or not the Customer is acting pursuant to the Contract or its relationship with the Company.

(c)      The Customer agrees that it must be able to demonstrate its compliance with the requirements referred to in this Condition 16 at the request of and to the satisfaction of the Company, which includes the Company having the right to inspect any site involved in work for the Company.  If the Customer fails to comply with this Condition 16, the Company shall be entitled, in its sole discretion, to terminate this Contract and any other contracts between the Customer and the Company without penalty to the Company, and the Customer shall indemnify the Company in full for any losses suffered by the Company as a result of such termination.

(d)      The parties agree:

(i)       to use their best endeavours and be duly diligent to:

1.       avoid the use in their business and its supply chains of any form of human trafficking, slavery, servitude or forced labour, to exploit children or any other person in Australia or elsewhere – including without limitation anything that would if done in New South Wales be a modern slavery offence under the Modern Slavery Act 2018 (NSW) (modern slavery); and

2.       identify the parts of their business and supply chains and those of their subcontractors and suppliers where there is a risk of modern slavery taking place and duly manage that risk;

(ii)       comply with all laws in connection with the avoidance or reduction of modern slavery;

(iii)      comply with any reasonable policy or direction notified to each other from time to time in relation to the avoidance of modern slavery in the parties’ business and supply chains and those of their subcontractors or suppliers; and

(e)      promptly comply with all reasonable requests from one another for information in relation to each party’s compliance with this Condition 16.

17 TERMINATION

(a)      The Company shall be entitled, without prejudice to the Company’s other rights and remedies, either to terminate wholly or in part any or every Contract between the Company and the Customer and/or to suspend any further deliveries of Goods, or performance of Services, in any of the following circumstances:

(i)       non-compliance by the Customer with the Company’s terms of payment set out in Condition 3 above;

(ii)       the Customer has failed to provide a letter of credit or guarantee, bill of exchange or any other security required by the Contract;

(iii)      the Company becomes aware or is of the reasonable opinion that the Customer is in breach of Condition 15;

(iv)      where the Customer is a body corporate:

1.         an administrator, liquidator or provisional liquidator is appointed to the Customer;

2.         a receiver or receiver and manager is appointed to the Customer or any part of its property;

3.         the Customer enters into or proposes to enter into a deed of company arrangement or scheme of arrangement or a composition with, or assignment for the benefit of, all or any class of its creditors, or a moratorium involving any of them, otherwise than for the purpose of an amalgamation or reconstruction;

4.         the Customer becomes insolvent within the meaning of section 95A(2) of the Corporations Act 2001 (Cth);

5.         a winding up order is made in respect of the Customer or a resolution for the winding up of the Customer is passed or attempted to be passed, except for the purposes of reconstruction or amalgamation;

6.         an application is made (which is not dismissed within 10 Business Days) for an order, a resolution is passed or proposed, a meeting is convened or any other action is taken to cause anything described above, other than for the purposes of an amalgamation or reconstruction;

7.         the Company forms the view that, or the Customer is or states that, the Customer is unable to pay its debts when they fall due; or

8.         anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs to the Customer;

(v)      where the Customer is a person:

1.         the Customer becomes bankrupt;

2.         an official manager is appointed to all or any part of the property of the Customer;

3.         the Customer enters into or proposes to enter into a scheme of arrangement or a composition with, or assignment for the benefit of, all or any class of its creditors, or a moratorium involving any of them;

4.         the Company forms the view that, or the Customer is or states that, the Customer is unable to pay his or her debts when they fall due;

5.         an application is made (which is not dismissed within 10 Business Days) for an order, a resolution is passed or proposed, a meeting is convened or any other action is taken to cause anything described above; or

6.         anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs to the Customer;

(vi)      the Company reasonably believes that any of the events mentioned at Conditions 17(a)(i) to (v) above or any equivalent or similar event under any relevant laws to which the Customer or any connected person is subject, has occurred or may occur;

(vii)     the Customer or any connected person commits any breach of this Contract or any other contract whenever made between the Customer and the Company.

(b)      This Contract shall automatically terminate if a Total Loss occurs in relation to the Goods.

(c)      Termination of Contract shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

(d)      On termination of the Contract for any reason:

(i)       the Company’s consent to the Customer’s possession of the Goods shall terminate and the Company may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Goods and for this purpose may enter any premises at which the Goods are located;

(ii)       the Customer shall pay to the Company on demand:

1.       the pro rata Rental Payments for all work done, materials used and Goods delivered up to and including the date of termination and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to Condition 3(i)(iv); and

2.       any costs and expenses incurred by the Company in recovering the Goods, repairing any damage, impairment or loss to the Goods, and/or in collecting any sums due under this Contract (including any storage, insurance, repair, transport, legal and remarketing costs);

(iii)      the Customer shall promptly:

3.       return to the Company all equipment, materials and property belonging to the Company that the Customer has in its custody;

4.       return to the Company all documents and materials (and any copies) containing the Company’s Confidential Information;

5.       erase all of the Company’s Confidential Information from its computer systems (to the extent possible); and

6.       on request, certify in writing to the other party that it has complied with the requirements of this Condition.

(e)      Upon termination of this Contract pursuant Condition 17(a), any other repudiation of this agreement by the Customer which is accepted by the Company or pursuant to Condition 17(b), without prejudice to any other rights or remedies of the Company, the Customer shall pay to the Company on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the Contract had continued from the date of such demand to the end of the Rental Period.

(f)       The sums payable pursuant to Condition 17(e) shall be agreed compensation for the Company’s loss and shall be payable in addition to the sums payable pursuant to Condition 17(d)(ii).

(g)      On termination of the Contract, Conditions which expressly or by implication have effect after termination shall continue in full force and effect.

18 INTELLECTUAL PROPERTY

Any Intellectual Property Rights created by the Company in the course of the performance of the Contract or otherwise in the manufacture of the Goods or provision of the Services shall remain the Company’s property. Nothing in the Contract shall be deemed to have given the Customer a licence or any other right to use any of the Intellectual Property Rights of the Company.

19 CONFIDENTIALITY

The Customer shall keep and procure to be kept secret and confidential all Confidential Information disclosed to it or obtained by it as a result of the relationship of the parties under the Contract and shall not use or disclose the same, save for the purposes of the proper performance of the Contract or with the prior written consent of the Company.

20 PRIVACY

(a)      To the extent that the Customer and the Company respectively collect personal information about one another, their businesses and personnel (“Personal Information“) they shall at all times abide by the Privacy Laws in the handling of that Personal Information.

(b)      The Customer acknowledges and agrees that the Company may transfer Personal Information to other companies to related bodies corporate of the Company, to credit rating agencies and other third parties engaged by the Company in accordance with the Company’s legitimate business needs including for the purpose of obtaining credit reports about the Customer, its directors and guarantors for the purpose of assessing creditworthiness and for the purpose of exchanging Personal Information with other credit agencies in case of any default by the Customer or its guarantors.

21 NOTICES

(a)      Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid post or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.

(b)      Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such address, if sent by prepaid post, at 10.00 am on the second Business Day, after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

22 OPTION TO PURCHASE

(a)      This condition 22 applies if, and only if, the Company’s Order specifies that the Customer shall be entitled to purchase the Goods from the Company at the end of the Rental Period.

(b)      The Customer has the option to purchase the Goods from the Company, at or immediately following the end of the Rental Period.  The Customer may not exercise the option to purchase the Goods at any other time, and the Customer may not exercise the option to purchase the Goods if the Company has terminated the Contract early.

(c)      To exercise that option, the Customer must pay the Company:

(i)       the purchase price shown in the Order (or, if no purchase price is shown in the Order, the purchase price notified in writing by the Company to the Customer);

(ii)       any unpaid Rental Payments (so that the Customer has paid the total of all Rental Payments for the whole of the Rental Period); and

(iii)      any other costs and expenses, interest, taxes or duties, due to the Company in accordance with the Contract.

23 OPTION TO EXTEND RENTAL PERIOD

The Customer may, by giving the Company written notice not later than 90 days prior to the end of the Rental Period, request an extension to the Rental Period, such extension to be at the sole discretion of the Company.

24 GENERAL

(a)      If at any time any one or more of the provisions of these Conditions become invalid, illegal or unenforceable in any respect under any law, the validity and enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired thereby.

(b)      Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.

(c)      The rights and remedies of the Company under the Contract shall not be diminished waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.

(d)      The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Company.

(e)      The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person.

(f)       Subject to Condition 24(g) below, a person who is not a party to the Contract has no rights to enforce any provision of the Contract.

(g)      The Company and any member of its group may enforce the provisions of this Contract subject to and in accordance with Condition 24(h).

(h)      The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Contract are not subject to the consent of any person that is not a party to this Contract.

25 GOVERNING LAW AND DISPUTES

(a)      The Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of New South Wales, Australia.

(b)      The parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia and courts that have the right to hear appeals therefrom.

(c)      The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Conditions or the Contract.

26 LANGUAGE

The Contract is drafted and entered into in the English language. All amendments to the Contract and all other documents provided under or in connection with the Contract shall be in the English language. If the Contract, or any documents provided under or in connection with the Contract, are translated into any other language, the English language version shall prevail.