Definitions
1. In these Terms, unless otherwise provided, the following words have the following meanings:
Additional Amounts means any costs or expenses incurred by Macro Weld in respect of: (a) vehicle or wagon detention of the Equipment (to the extent that the same is not caused or contributed to by Macro Weld); (b) demurrage on ships as a consequence of any act or omission of the Purchaser; (c) any increase in duties, taxes, freight, insurance or other charges or expenses from the date of this Agreement to the Delivery Date; and (d) any fluctuation in foreign exchange currency rates affecting the cost to Macro Weld of obtaining the Equipment or delivering the Equipment to the Purchaser. The Purchaser acknowledges that any sum charged by Macro Weld in respect of such fluctuation may be based upon the entire Price, irrespective of whether any part of the Price has been paid by the Purchaser.
Agreement means the agreement compromising of the Commercial Terms Schedule, these Terms, the Equipment Warranty and the Proposal.
Commercial Terms Schedule means the schedule attached to the Proposal.
Commissioning means (a) Installation has occurred; (b) the Equipment is operational; (c) the Equipment has been tested with consumables if such consumables have been supplied by the Purchaser prior to Commissioning; and (d) Macro Weld has completed a final commissioning report (Final Commissioning Report) upon completion of the later to occur of (b) and (c) above.
Delivery of the Equipment is deemed to occur: (a) in the case of delivery to the Site, upon the commencement of the unloading of the Equipment from the transport vehicle; or (b) in the case of collection by the Purchaser from Macro Weld’s premises, upon the earlier of the commencement of the loading of the Equipment onto the Purchaser’s vehicle, receipt by Macro Weld of a request from the Purchaser for Macro Weld to store the Equipment and 5:00pm on the date being 7 days from the day on which Macro Weld notified the Purchaser that the Equipment was ready for collection.
Equipment means the equipment described in the Commercial Terms Schedule.
Estimated Dates means any estimated Delivery Date, Installation Date, Commissioning Date and Hand Over Date as set out in the Commercial Terms Schedule.
Excluded Loss means (a) in the case of loss or damage resulting from a breach of contract (including any contractual duty of care) - loss of revenue; loss of profit; loss or denial of opportunity; loss of access to markets; loss of goodwill; loss of business reputation; loss arising from late delivery or failure to deliver goods; loss arising from any business interruption; increased overhead costs and any indirect, consequential, remote or unforeseeable loss occasioned by that breach, whether or not in the reasonable contemplation of the Purchaser and Macro Weld at the time of entering into this Agreement or at the time of Delivery as being a probable result of the relevant breach; and (b) in the case of loss or damage arising from any tort (including negligence) which does not also constitute a breach of contract - indirect, remote or unforeseeable loss and, in the case of pure economic loss, loss not flowing directly from the commission of the tort.
Force Majeure Occurrence means any unforeseeable event or occurrence which is beyond the reasonable control of a party, including strikes, failure of a utility service or transport or telecommunications network, natural disasters, acts of God, wars, riots, civil commotion, malicious damage, pandemics, epidemics, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery.
GST means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.
GST Law has the meaning given to that term in A New Tax System (Goods and Services) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
Hand Over means the time at which Macro Weld, or its supplier, has trained the Purchaser’s staff to operate the Equipment safely in accordance with this Agreement and Hand Over will occur when the Purchaser signs Macro Weld’s “Hand Over Form”. Upon signing the “Hand Over Form”, Purchaser assumes responsibility for the control, maintenance and safety of the Equipment.
Insolvency Event means, in relation to a person, (a) anything which reasonably indicates that there is a significant risk that such person, is or will become unable to pay its debts as and when they fall due or is presumed to be insolvent under applicable law; (b) the appointment of a receiver, receiver and manager, administrator, controller, liquidator or provisional liquidator, trustee, other controller or similar officer to the person or any of its assets; and (c) any event under law which is analogous to, or which has a substantially similar effect to, any of the events referred to in paragraphs (a) and (b).
Installation means the assembly and placement of all major components of the Equipment supplied in proper position at the Site.
PPSA means the Personal Property Securities Act (2009) as amended from time to time and all regulations made under it.
Proposal means Macro Weld’s customised proposal provided to the Purchaser.
Proprietary Information means any and all information relating to the Equipment or its installation including designs, drawings, instructiondrawings, booklets, specifications, circuit componentry, trademarks and patents and any and all proprietary information, intellectual property and copyright in such proprietary information.
Purchaser means the purchaser named in the Commercial Terms Schedule and/or Proposal.
Site means the site address specified in the Commercial Terms Schedule.
Tax Invoice has the meaning given to that term by the GST Law.
Taxable Supply has the meaning given to that term by the GST Law.
Terms means these General Terms and Conditions of Sale.
2. All other defined terms shall have the same meaning as in the Agreement to which these Terms have been attached.
Basis of Agreement
3. Macro Weld agrees to sell the Equipment to the Purchaser, and the Purchaser agrees to purchase the Equipment, in accordance with the Agreement.
Payment and Charges
4. The Purchaser must pay the Price to Macro Weld in accordance with the “Payment Schedule” specified in the Commercial Terms Schedule.
5. Late payment of any deposit specified in the “Payment Schedule” in the Commercial Terms Schedule may jeopardise the Estimated Dates (if applicable) and may incur additional charges. Late payments will incur interest payable by the Purchaser as specified in the “Late Payment Schedule” in the Commercial Terms Schedule.
6. Macro Weld may deliver invoices by email or post. All payments are due on the due date appearing on the invoice.
7. Any services which are expressed in the Proposal and/or the
Commercial Terms Schedule as not being included in the Price must be ordered and paid for by the Purchaser separately.
8. Macro Weld reserves the right to invoice and recover from the Purchaser any Additional Amounts.
9. Payment by cheque or electronic funds transfer is not deemed made until the proceeds of the cheque or the funds transferred have cleared.
10. If the Purchaser disputes an invoice, it shall file a claim for credit with Macro Weld. The Purchaser shall provide Macro Weld with all relevant information to enable Macro Weld to evaluate such claim. Upon receipt of such information, Macro Weld shall promptly evaluate such claim (including in accordance with its internal policies and procedures). Macro Weld shall issue a credit to the Purchaser (which may be in whole or in part) if Macro Weld accepts the claim (whether in whole or in part). If Macro Weld
does not accept the claim, it shall nonetheless negotiateingood faith with the Purchaser to resolve the claim. In the interim, the Purchaser shall not withhold payment on an invoice,make deductions, issue charge backs or apply off sets,pending resolution of such claim. If the parties are not able to resolve the claim, they shall follow the dispute resolution procedures set out in these Terms.
Specifications
11. The Equipment will be deemed to operate satisfactorily if the Equipment operates in accordance with the relevant specifications of the manufacturer of the Equipment.
12. The Purchaser acknowledges that the Purchaser's actual operating conditions, over which Macro Weld has no control, will affect the performance levels achieved by the Purchaser in respect of the Equipment. For this reason, Macro Weld cannot warrant the actual performance of the Equipment. Any statement made by Macro Weld concerning the performance of the Equipment shall not constitute a warranty that the Equipment will achieve such performance level. Macro Weld does not warrant the Equipment will be capable of achieving any specific performance level.
13. The Equipment will be supplied to the manufacturer’s standard finish and dimensions at the time of manufacture. All specifications, drawings and particulars of dimensions and performance characteristics provided to the Purchaser are approximate only and descriptions and illustrations contained in catalogues, price lists and other written material are intended merely to present a general idea of the Equipment described therein and none of those documents form part of this Agreement.
Unless required by law, neither Macro Weld nor the manufacturer
14. accepts any responsibility or liability whatsoever should the colour, designs or dimensions of the Equipment vary from the colour, designs or dimensions contained in any product catalogue, brochure or other promotional or information document in respect of the Equipment, which are a guide only.
Delivery and risk
15. Subject to clause 18, Macro Weld will arrange for delivery of the Equipment to the Site. Macro Weld is entitled to charge the Delivery Fee for such delivery as set out in the Commercial Terms Schedule (if any). The Purchaser must pay the Delivery Fee and any Additional Amounts upon delivery of the Equipment.
16. Macro Weld will use its best endeavours to ensure Delivery occurs by any estimated Delivery Date.
17. Macro Weld will be under no obligation to make a delivery of any part of the Equipment until such time as any monies outstanding by the Purchaser to Macro Weld under this Agreement have been paid in full or if the Purchaser has not otherwise complied with its obligations under this Agreement.
18. If delivery to the Site is not specified in the Commercial Terms Schedule, the Purchaser must collect the Equipment from Macro
Weld’s premises within 7 days of Macro Weld notifying the Purchaser that the Equipment is ready for collection. If the Purchaser fails to collect the Equipment within that time, Delivery will be deemed to have occurred.
19. Macro Weld is entitled to deliver the Equipment in one or more lots and may invoice the Purchaser for the Equipment and services provided as at the date of the invoice.
20. The Purchaser indemnifies Macro Weld against any loss or damage suffered by Macro Weld, its contractors, agents or employees as a direct result of delivery except to the extent such loss or damage has been caused by Macro Weld, its contractors, agents or employees.
Installation
21. If the Proposal specifies that Macro Weld will provide Installation, Macro Weld will arrange for Installation at the Site and clauses 2124 (inclusive) shall apply. Macro Weld is entitled to charge the Installation Fee for such Installation set out in the Proposal (if any). The Purchaser must pay the Installation Fee and any Additional Amounts upon completion of Installation.
22. Macro Weld will use its best endeavours to ensure Installation occurs by the estimated Installation Date, if a date is given.
23. Macro Weld will be under no obligation to arrange for Installation until such time as any monies outstanding by the Purchaser to Macro Weld under this Agreement have been paid in full or if the Purchaser has not otherwise complied with its obligations under this Agreement.
24. The Purchaser indemnifies Macro Weld against any loss or damage suffered by Macro Weld, its contractors, agents or employees as a direct result of Installation except to the extent such loss or damage has been caused by Macro Weld, its contractors, agents or employees.
Commissioning
25. If the Commercial Terms Schedule specifies that Macro Weld will forprovide Commissioning, Macro Weld will arrange Commissioning at the Site and clauses 25-31 (inclusive) shall apply. Macro Weld is entitled to charge the Commissioning Fee for such Commissioning set out in the Commercial Terms Schedule (if any). The Purchaser must pay the Commissioning Fee and any Additional Amounts upon completion of Commissioning.
26. Macro Weld will use its best endeavours to ensure Commissioning occurs by the estimated Commissioning Date.
27. The Equipment is deemed to have been Commissioned if: (a) the forPurchaser fails to provide reasonable resources Commissioning when required by Macro Weld and fails to make reasonable alternative arrangements for Commissioning to occur; (b) the Purchaser fails to cooperate with the Commissioning process when scheduled and fails further to agree to a new schedule; (c) Macro Weld is unable to complete Commissioning within 30 days of the estimated Commissioning Date (as extended, if applicable) due to delays caused by the Purchaser, including delays caused by the Purchaser's failure to supply sufficient consumables for testing the Equipment during Installation and Commissioning or delays caused by third party suppliers of peripheral equipment. Macro Weld shall have the right (if the conditions in (a) to (c) above trigger commissioning without the participation of the Purchaser) to notify the Purchaser when Commissioning has occurred or when the Equipment is deemed to have been Commissioned.
28. Once Commissioning has occurred, the Purchaser will sign a copy of the Installation and Commissioning Report to indicate the Purchaser's agreement that Commissioning has occurred and Macro Weld will provide Purchaser with a copy of the completed Installation and Commissioning Report.
29. The Purchaser agrees to make competent, experienced, and suitably qualified personnel available for Commissioning and Hand Over.
Macro Weld will be under no obligation to arrange for
30. Commissioning (a) until such time as any monies outstanding by the Purchaser to Macro Weld under this Agreement have been paid in full; or (b) if the Purchaser has not otherwise complied with its obligations under this Agreement.
The Purchaser indemnifies Macro Weld against any loss or
31. damage suffered by Macro Weld, its contractors, agents or employees as a direct result of Commissioning except to the extent such loss or damage has been caused by Macro Weld, its contractors, agents or employees.
Hand Over
32. If the Commercial Terms Schedule, specifies that Hand-Over is a requirement, under no circumstance shall the Purchaser operate the Equipment before Hand Over. This is a safety requirement, which cannot be waived by Macro Weld. The Purchaser shall not request permission from Macro Weld's staff to operate the Equipment before Hand Over. Macro Weld's staff have no authority to grant such permission, whether expressed or implied. If the Purchaser disregards this requirement, the Purchaser does so at its own risk and thereby assumes responsibility for all liability and consequences.
33. Where Hand Over is specified as applicable in the Commercial Terms Schedule, Macro Weld will arrange for Hand Over at the Site, unless the Commercial Terms Schedule specifies an alternative location or that the Hand Over will be conducted remotely. Macro Weld is entitled to charge the Hand Over Fee as set out in the Commercial Terms Schedule (if any). The Purchaser must pay the Hand Over Fee and any Additional Amounts at Hand Over.
34. Macro Weld will use its best endeavours to ensure Hand Over occurs by the estimated Hand Over Date in the Commercial Terms Schedule.
35. At Hand Over MacroWeld:
(a)willprovide all applicable operational,maintenanceandsafetymanuals to the Purchaser; and safety
(b) transfer to the Purchaser full operating responsibilityovertheEquipment;and
(c)hand over the controls to the PurchaserandthePurchasermayuse the Equipment without MacroWeldsupervision.
36. FollowingHandOver,thePurchaserisresponsible for ensuring that the Equipment is properly operated, repaired and maintained (including by complying strictly with the operating, maintenance and safety procedures contained in MacroWeld’s manuals and documentation and all health and safety laws and regulations) and used in accordance with all operating, maintenance and safety manuals in respect of the Equipment as provided by Macro Weld.
Safety and Site Requirements
37. The Purchaser must do all things necessary and reasonably requested by Macro Weld (including as listed in the Proposal and/or the Commercial Terms Schedule if applicable) to ensure that Macro Weld can carry out its obligations under this Agreement (including as to Delivery, Installation, Commissioning and/or Hand Over as relevant) under conditions meeting the requirements of all applicable laws and regulations for working conditions at the Site.
38. The Purchaser will ensure that, prior to delivery of the Equipment, it completes any building construction, modifications, and services
(including power and lighting), required by Macro Weld for Installation to occur. The Purchaser shall obtain for Macro Weld, at the Purchaser's cost, all local licences, permits, and approvals that Macro Weld may need to perform its obligations under this Agreement. Macro Weld shall make commercially reasonable efforts to provide such reasonable assistance as the Purchaser may require.
The Purchaser will provide, at no cost to Macro Weld, power,
39. lighting, water, fuel, and any equipment and consumables necessary for carrying out Delivery, Installation, Commissioning and Hand Over at the Site. The Purchaser will ensure that any equipment not supplied by Macro Weld but required for Installation
In addition, theis operational before the Installation Date.
Purchaser shall ensure that any and all equipment provided by the Purchaser is in good working order, compliant with any applicable regulations and standards, and fit for the intended purpose.
40. The Purchaser must provide uninterrupted working areas for the Installation of the Equipment and clear unobstructed access onto the Site to allow Macro Weld to comply with its obligations under this Agreement.
41. The Purchaser will grant Macro Weld free reasonable use of office, telephone, broadband internet and staff facilities and amenities during Installation, Commissioning and Hand Over and otherwise when Macro Weld is at the Site.
42. The Purchaser will give Macro Weld (including its subcontractors, personnel and representatives) access at all reasonable times to the Site to enable the performance by
Macro Weld of its obligations under this Agreement.
43. The Purchaser shall provide any information about the Site, plant and operations as Macro Weld may, from time to time, reasonably request in order for Macro Weld to install and commission the Equipment. Macro Weld shall have no liability for any delays caused by the Purchaser's failure to supply such information or comply with its obligations under clauses 37 to 42 on a timely basis and will be entitled to claim an extension of time to the
Installation Date, Commissioning Date and Hand Over Date as necessary.
Purchaser’s assistance
44. The Purchaser will provide such other assistance to Macro Weld and take all other commercially reasonable steps (including arranging its operations) necessary and within the Purchaser’s reasonableInstallation, control to ensure that Delivery,
Commissioning and Hand Over can proceed, to the extent that the Commercial Terms Schedule specifies that Macro Weld will provide such services.
45. If the Purchaser fails to meet any such obligation or take any such other steps, then, without limiting the rights and remedies of Macro
Weld, Macro Weld is entitled to recover from the Purchaser any
direct costs or expenses (including storage costs, hire charges, airfares, accommodation, car rental, and hourly and per diem charges) incurred by Macro Weld as a result of that failure.
Estimated Dates and delays
46. The Estimated Dates (if any) are set out in the Commercial Terms Schedule. The Estimated Dates are an estimate only based on the facts and circumstances existing and known to Macro Weld at the time of entering into the Agreement. The Estimated Dates will likely be delayed if the Purchaser has not paid the amounts set out in the Payment Schedule specified in the Commercial Terms Schedule or otherwise complied with its obligations under this Agreement.
47. Macro Weld will not be liable for any loss, damage or expense suffered or incurred by the Purchaser or any third party whatsoever or howsoever arising in connection with any Estimated Date and any delay will not relieve the Purchaser of its obligation to pay the Price or permit the Purchaser to terminate the Agreement and/or reject the Equipment.
48. Each party will promptly notify the other party if it becomes aware of anything that will delay or is likely delay Macro Weld’s ability to perform this Agreement, including to meet any of the Estimated Dates. The party’s notice will include details of the cause and effects of the delay or likely delay and the proposed steps the party considers should be taken to mitigate this or ensure the delay does not occur.
The Purchaser will grant Macro Weld an extension of time to any
49. Estimated Date (as applicable) if Macro Weld is fairly entitled to an extension by reason of delays caused by (a) the Purchaser (including its contractors, consultants and personnel); (b) a Force Majeure Occurrence; or (c) any other circumstances that could not have been reasonably foreseen by an experienced supplier, in each case only to the extent that such event has not occurred as a result of Macro Weld’s negligent act or omission, or default.
Where Macro Weld is entitled to an extension of time under clause
50. 49, Macro Weld will also be entitled to compensation from the Purchaser for time-related cost (including but not exclusively, storage, travel expenses, personnel time and materials).
Risk and insurance
51. Risk of loss or damage to the Equipment shall pass from Macro Weld to the Purchaser upon Delivery.
52. Macro Weld shall insure the Equipment for its full replacement value until risk of loss or damage passes to Purchaser. Thereafter, the Purchaser shall insure the Equipment for its full replacement value against loss or damage due to fire, theft, Acts of God and other perils on and after Delivery.
53. If Macro Weld provides Installation, the Purchaser is responsible for obtaining and maintaining contract works insurance (Construction Insurance), which must also provide cover for
Macro Weld and its subcontractors as insureds along with the
Purchaser in relation to the supply, Installation and
Commissioning of the Equipment. The amount of the
Construction Insurance shall be no less than the Price of the Equipment, plus appropriate allowances for demolition, professional fees, and cost escalation.
54. Upon request, Purchaser shall furnish Macro Weld with evidence of insurances and all material details of the insurance policies as may be required by Macro Weld.
Title
55. Legal and beneficial title to the Equipment shall remain with Macro Weld and does not pass to the Purchaser until all monies owing by the Purchaser to Macro Weld in respect of the Equipment have been paid in full.
56. This Agreement constitutes a security agreement for the purposes of the PPSA and a security interest exists in favour of Macro Weld in the Equipment and its proceeds.
57. Until such time as all amounts owing to Macro Weld under this Agreement have been paid in full, the Purchaser must: (a) hold the Equipment as the fiduciary agent and bailee of Macro Weld and store the Equipment so it is clearly identifiable as property of Macro Weld; (b) not sell, lease, part with possession of, create or allow to be created any security interest over or otherwise in connection with the Equipment; (c) keep the Equipment insured against loss or damage for its full replacement value noting the interest of Macro Weld on the insurance policy and ensuring that Macro Weld is entitledtorely on that insurance; (d) returnthe Equipment to MacroWeld on demand atanytimeand immediately followingthemaking of a demand by MacroWeld.
58. The Purchaser irrevocablygrants to Macro Weldtherighttoenter upon the Site or thePurchaser’s other premises,soastoenable Macro Weld to inspectandreclaim possessionoftheEquipment in the event of anydefaultby the Purchaser,andotherwiseif
Macro Weld has causetoexercise MacroWeld’srights.The Purchaser shall indemnifyMacro Weld andkeepMacroWeld indemnified against anyclaims or demandsmadebyanythird party on any account whatsoever as a resultofsuchexercise.
PPSA
59. In clauses 60 to 68, terms that are defined in the PPSA have the same meaning (unless otherwise defined in this Agreement or the context requires otherwise).
60. The Purchaser acknowledges that this Agreement constitutes a security agreement for the purposes of the PPSA and that a security interest exists over the Equipment in accordance with clause 55.
61. The Purchaser consents to Macro Weld registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by Macro Weld to facilitate registration.
62. The Purchaser waives its right to receive any notice under the
PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
63. Each Security will, at the option of Macro Weld, notwithstanding any delay or previous waiver of the right to exercise such option, immediately become enforceable without any demand or notice on the occurrence of:
63. 1. the Purchaser breaching a material provision of this agreement and failing to remedy the breach within 30 days after service on it of a notice requiring it to remedy that breach or breaches a material provision of this agreement where that breach is not capable of remedy; or
63. 2. an Insolvency Event in relation to the Purchaser.
64. At any time after a Security becomes enforceable under clause 63, Macro Weld may appoint any person to be receiver of the relevant Secured Property and may fix the remuneration of any such receiver at such amount as Macro Weld thinks fit provided always that such receiver shall be the Purchaser of the Purchaser and the Purchaser alone shall be responsible for the acts and defaults of such receiver and such receiver will without any consent on the part of the Purchaser has power to:
64. 1. take possession of and get in the whole or any part of the Secured Property;
64. 2. carry out and enforce specific performance of or otherwiseobtain the benefit of contracts entered into or held by the Purchaser in connection with the Secured Property;
64. 3. bring or defend any action, suit or legal proceedings in thename of the Purchaser or otherwise for all or any of the purposes aforesaid;
64. 4. do all things necessary to perform or observe any of thecovenants, obligations or undertakings on the part of the Purchaser herein contained; and
64. 5. do all such other acts and things without limitation as thereceiver shall think expedient in the interests of Macro Weld.
65. The Purchaser agrees that Macro Weld is not required to give any notice under the PPSA (including a notice of verification statement under section 157) unless a requirement to provide notice under the PPSA cannot be excluded. However, nothing prohibits the Purchaser from giving a notice under the PPSA or any other law. The parties agree that they need not comply with any of the excludable provisions set out in section 115 of the PPSA.
66. The parties agree that neither party may disclose any information of the kind referred to in section 275(1) of the PPSA (including any information or document in connection with any Security Interest) unless section 275(7) of the PPSA otherwise applies.
67. Any powers and rights of Macro Weld described in clauses 60 to
68. are in addition to, and not in lieu of, any powers or rights Macro Weld or its Company may have under the Act, the PPSA, the common law or otherwise under or in relation to this deed.
68. The Purchaser must notify Macro Weld at least 14 days before:
68. 1. it (or, if applicable, a trust or a partnership in which it is or atany time becomes a partner) changes its name or its place of incorporation;
68. 2. any ABN, ARBN or ARSN allocated to it (or, if applicable, atrust or a partnership in which it is or at any time becomes a partner) changes, is cancelled or otherwise ceases to apply to it (or if it does not have an ABN, ARBN or ARSN, an ABN, ARBN or ARSN is allocated to it or otherwise commences to apply to it);
68. 3. it changes the jurisdiction in which it is treated as resident for tax purposes;
68. 4. it becomes a trustee of a trust or a partner in a partnership; or
68. 5. it intends to carry on an enterprise to which an ABN will be allocated.
Limitation of liability and indemnity
69. The Purchaser acknowledges that: (a) it has relied on its own skill and judgement in relation to its decision to purchase the Equipment and to enter into this Agreement and the use and application of the Equipment; and (b) save as otherwise notified to Macro Weld by the Purchaser in writing, the Purchaser has not made known, either expressly or by implication, to Macro Weld any purpose for which it requires the Equipment and it has the sole responsibility of satisfying itself that the Equipment is suitable for the Purchaser’s desired use.
70. Except as contained in any express warranty provided in relation to the Equipment, this Agreement does not include by implication any other term, condition or warranty in respect of the Equipment including as to the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Equipment or any services provided by Macro Weld under this Agreement.
71. Except for breaches of confidentiality, express payment, warranty and indemnification obligations under this Agreement and any negligence, and notwithstanding any other provision of this Agreement, neither party shall be liable to the other for any
Excluded Loss.Notwithstanding any other provision of this Agreement, the maximum liability of Macro Weld arising out of, or in connection with, this Agreement is the price paid for the Equipment by the Purchaser to Macro Weld under this Agreement.
Cancellation by Macro Weld
72. If Macro Weld is unable to supply the Equipment due to limited availability of the Equipment, it may terminate this Agreement at any time by written notice to the Purchaser.
73. No purported cancellation or suspension of the Agreement or any part of it by the Purchaser is binding on Macro Weld.
74. In the event that Macro Weld has not delivered the Equipment to the Purchaser prior to the expiration of six months from the estimated Delivery Date (as extended, if applicable), either Macro Weld or the Purchaser may give notice in writing to the other party terminating the Agreement at which time this Agreement will be at an end and neither party will be subject to any claim whatsoever in connection with the giving of such notice, save as provided by clause 75.
75. Upon the termination of the Agreement pursuant to clause 72 or
74 all monies paid by the Purchaser to Macro Weld in respect of the Equipment must be refunded to the Purchaser without deduction and each party hereby releases and forever discharges the other from all obligations and liabilities of whatsoever nature or howsoever arising out of the Agreement.
Intellectual property and Proprietary Information
76. The Purchaser acknowledges the Proprietary Information remains the property of Macro Weld or its licensors and the Proprietary Information is confidential and contains trade secrets and that its disclosure will cause Macro Weld, or other parties, to suffer financial loss.
77. The Purchaser must not use, copy, reproduce or disclose the Proprietary Information other than for the purposes of using the Equipment or as otherwise approved by Macro Weld or its licensors.
78. The Purchaser shall keep confidential all such designs, drawings, specifications and technical in formation and shall not disclose the same to any third party without MacroWeld's prior written consent. The Purchaser must implementall measures necessary to safeguard the confidentiality of the Proprietary Information including without limitation: (a) allowing its employees, agents and customers access to the Proprietary Information only to the extent necessary to secure the performance of the Equipment and requiring,as a condition of such access, that such persons comply with this clause; (b) co-operating with Macro Weld in the enforcement of such compliance by the Purchaser’s employees, agents and customers ; (c) not removing or permitting the removal or alteration of any copyright or confidentiality labels placed on the Equipment by MacroWeld or its licensors; (d) not disassembling, decompiling or reverse engineering any part of the Equipment whether software or hardware;(e) not reproducing any part of the Equipment whether software or hardware.
79. The Purchaser indemnifies, and agrees to keep indemnified, Macro Weld against any loss, costs, expenses,damages or harm suffered or incurred by MacroWeld in connection with or arising out of or as a result of any breach by the Purchaser of clauses 76 to 78.
Purchaser Default
80. This Purchaser will be in “Default” under this Agreement should it: (a) fail to make due payment of the Price or any other sum payable by it under this Agreement; (b) commit a breach of this Agreement; (c) being a natural person, commit an act of bankruptcy; or (d) being a corporation, by act or omission enable the appointment of an administrator, scheme manager, trustee, official manager, receiver, receiver and manager, liquidator or any other person authorised to enter into possession or assume control of any property of the Purchaser pursuant to a mortgage or other security.
81. If the Purchaser is in Default, Macro Weld may, without prejudice to any of its other accrued or contingent rights: (a) require immediate payment of all monies owing by the Purchaser to Macro Weld under this Agreement and on any other account; (b) withhold any further deliveries of Equipment or performance of Installation, Commissioning or Hand Over services under this
Agreement; (c) suspend and/or terminate performance of any other contracts which Macro Weld has with the Purchaser without incurring any liability for doing so; and/or (d) charge the Purchaser for, and the Purchaser must indemnify Macro Weld from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the Purchaser’s Default or in taking action to enforce compliance with this Agreement or to recover any Equipment.
Force majeure
82. If the performance or observance of any obligations of Macro
Weld is prevented, restricted or affected by reason of a Force Majeure Occurrence, Macro Weld may, in its absolute discretion give prompt notice of that cause to the Customer. On delivery of that notice Macro Weld is excused from such performance or observance to the extent of the relevant prevention, restriction or effect.
GST
83. If any transaction contemplated by this Agreement constitutes a Taxable Supply, the party obliged to pay for the Taxable Supply must pay an additional amount equal to the GST payable (if any) on or for the Taxable Supply.
84. The person providing the Taxable Supply will provide the party receiving the Taxable Supply with a valid tax invoice for GST purposes at the time of request for payment.
85. Payment of the GST will be made at the same time as the payment for the Taxable Supply is required to be made.
86. Any reference to a cost or expense in this Agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party Dispute resolutioncan claim an Input Tax Credit.
Dispute resolution
87. If a dispute between the parties arises out of, or in connection with, this Agreement, including any question about its existence, validity or termination (a “Dispute”), the parties agree to use their best efforts to resolve such Dispute amicably. A party must not commence any legal proceedings in respect of a Dispute in a court of competent jurisdiction unless and until the following steps have been taken (or the legal proceedings comprise an application
forany urgent relief).In the first instance, the parties' project
managers shall try to resolve the Dispute. If the project managers are not able to resolve the Dispute within seven days (or such longer time as the parties may agree), then a designated senior executive representing each party shall try to resolve the Dispute. If the senior executives are not able to resolve the Dispute within an additional seven days (or such longer time as the parties may agree), then either party may, by notice in writing to the other refer the Dispute to mediation, in which case the parties agree to engage a professional mediator to mediate the Dispute. Should the parties be unable to agree on a mediator within 10 business days of service of such notice on the identity of a mediator, the mediator will be appointed by the Institute of Arbitrators and Mediators Australia upon the application of either party. The place of mediation is Melbourne, Victoria. The parties are to share equally the fees of the mediator. Once the mediator has been appointed, the parties are to use their respective reasonable endeavours to agree on a date for mediation. If mediation fails to resolve the Dispute or if neither party refers the Dispute to mediation after the senior executives have been unable to resolve the Dispute, either party may commence legal proceedings in respect of the Dispute in a Victorian court of competent jurisdiction. If a party does not comply with any of the requirements of this section within the time period prescribed or fails to reasonably engage in the dispute resolution process, the other party may commence legal proceedings.
Nothing in clause 87 prevents Macro Weld from seeking recovery
88. for any claim that Macro Weld reasonably considers to be a monetary claim from a court of competent jurisdiction or by such other manner as is appropriate in the circumstances.
General
89. This Agreement shall be governed by the laws of the State of Victoria, Australia and the Purchaser agrees to submit to the non- exclusive jurisdiction of its courts.
90. Macro Weld's failure to enforce any of the terms of this Agreement shall not be construed as a waiver of Macro Weld's rights.
91. Time is of the essence in relation to all of the Purchaser’s obligations under this Agreement.
92. Any provision of, or the application of any provision of, this
Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any jurisdiction.
93. If any term or condition or part of a term or condition is illegal, unenforceable or invalid, that term or condition or part of the term or condition is to be treated as removed from this Agreement, but the rest of the terms and conditions in this Agreement are not affected.
94. The Purchaser must not novate or assign this Agreement without the prior written consent of Macro Weld.
95. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or posted to the other party at its address or sent by email to the other party’s email address as set out in this Agreement.
96. A notice delivered by hand shall be deemed to have been
received
when delivered at the relevant address. A correctly addressed notice sent by post shall be deemed to have been received three Business Days after it is posted (or if posted to another country, nine Business Days after it is posted). A notice sent by email shall be deemed to have been received at the time of transmission.
97. Any variation or modification of this Agreement must be in writing signed by both parties.
98. This Agreement may be executed by way of electronic signature.
To the extent that this Agreement is electronically signed, it shall be treated in all manner and respects as an original. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute a single instrument. A scanned pdf of a counterpart sent by email will be evidence of execution of that counterpart by the relevant party.
