STANDARD TERMS AND CONDITIONS OF SALE
The following terms and conditions cover the work described in the quotation by us (Windsor Engineering Group Limited or Windsor Engineering Group Pty Limited (ABN: 40-003 509 653), (“Windsor”)) submitted to you (the other party to this quotation) and separately appended.
(a) These terms and conditions will apply to any contract made between us unless they are changed by express provisions in our quotation or are varied by an agreement reached between us. Any such variation must be recorded in writing and signed by both of us. If there is any additional detail or agreement required by you for the contract, that agreement will prevail unless expressly over-ridden or waived subsequently.
(b) Our quotation shall be open for acceptance by you for 30 days from the date of the quotation. If not accepted within that time the quotation will require fresh confirmation from us before it is binding.
(c) We shall be responsible for completing the work in accordance with applicable regulations, bylaws and standards in New Zealand or Australia (or wherever the contract is performed) current at the time of the quotation. Any change in these requiring us to vary the work may result in an increase in the final billing price.
2. Price and Variation
(a) The price quoted by us in a quotation to you is based on current costs of labour, materials, travel, accommodation, freight, insurance, rates of exchange, duties and other such charges and taxes, except Goods and Services Tax (GST
) which is not included in the quoted price.
(b) We reserve the right to increase the final billing price for the product or work done to take into account increases in any of the items listed in the previous clause which are increases beyond our control occurring between the date of the quotation and the date of delivery.
(c) We reserve the right to increase the final billing price for increased costs resulting from delays to the contract caused by you.
(a) Payments for products or services invoices submitted to you are to be made promptly by the 20th
of the month following invoice date unless specified differently in the quotation or agreed otherwise in writing.
(b) Unless specified differently in the quotation, or agreed otherwise in writing, payments for project work are to be made to us as follows:
(i) A deposit payment of 30% of the value of the contract is due and shall be paid on acceptance of our quotation.
(ii) A further 50% of the value of the contract is to be paid during the period of supply of the products or services and if this period is longer than one month the 50% shall be divided by the number of months or part months taken and the monthly proportion paid on the 20th
day of the month following work being done. A GST invoice will be issued by us for payments required.
(iii) The balance is to be paid on installation but if commissioning is required 10% of the total value of the contract shall be paid on installation and the final 10% is to be paid within 30 days of commissioning.
(iv) If neither installation nor commissioning are required the balance of the price is to be paid to us on the 20th
day of the month following completion of the services or dispatch of the product from our factory.
(v) If installation and/or commissioning are delayed through no fault of Windsor, any final amount due under the project will be invoiced 90 days after the goods or services are supplied or made available to you and payment will be due on the 20th
day of the month following invoice date.
(vi) A tax invoice or invoices will be supplied by us for payments as required.
4. Consequences of Non-Payment
(a) If payments are not paid in full and/or in the agreed way then in addition to any other legal rights we have, we can:
(i) Charge interest on the moneys owing from the date they become overdue at a daily rate calculated on the basis of our then bank overdraft rate; and/or
(ii) Suspend work until the payment is made; and/or
(iii) Retain products or repossess products supplied but not fully paid for.
(b) If non-payment continues for more than 30 days then we can treat your non-payment as rejection of your obligations and we can cancel the contract and exercise our normal legal remedies which can include the recovery of any additional costs we incur in taking this action, and retention of any moneys paid by you to cover our losses.
(c) We cannot allow any deduction or set off by you for any amount that is due by us for any reason, unless there is a written agreement to give a credit on any particular occasion.
(d) Full payment is to be made when due and minor remedial work required on a product shall not entitle you to withhold moneys.
5. Delivery and Completion
(a) Unless stated in the quotation, you are responsible for taking delivery of a product from the factory when we have notified you of its completion.
(b) If you require us to deliver the product to your site, delivery will incur an additional delivery charge unless stated otherwise in the quotation.
(c) Unless otherwise explicitly agreed, the cost of packing the product for uplifting at our factory or for delivery to you at your site shall be a charge to you and is not included in the quoted price.
(d) We will use our best endeavours to complete the contract within the time indicated to you so long as materials for the contract are available as required. However, we do not accept any responsibility for delays that occur as a result of events entirely outside our control. We will not be liable for any indirect or consequential damages resulting from delay in completion, from whatever cause.
(e) Indicated delivery dates are based on reasonable timeframes for receiving final client information and final signoff/acceptance of Windsor and other relevant drawings and other documentation when required. Delays in the above may result in delivery not being met.
6. Risk and Title
(a) The products will be your responsibility once they leave our factory unless we are undertaking installation and commissioning in which case the products will become your responsibility on practical completion of installation. Once the products become your responsibility you must have them insured against loss.
(b) The ownership of the products does not pass from us to you until we receive full payment and you must not dispose of the products or deal with them in any way to change their character of identity as delivered, before full payment is made.
(c) Until full payment is received by us for the products, you agree that Windsor has authority to enter your premises and repossess the products.
(d) Windsor reserves the right to request you to complete documentation to allow it to register a Security Interest under the Personal Properties Securities Act 1999 (NZ) or the Personal Property Securities Act 2009 (Cth) (Aust.), (whichever is applicable) in respect of product which remains the property of Windsor until payment.
7. Warranty and Limitation
(a) We warrant that, upon delivery at our factory gate of a product, or upon installation or commissioning (if that is our obligation) the product and its components will be in good working order and perform in accordance with the specifications agreed upon.
(b) This warranty will apply for a term of 12 months and we will rectify any fault of a component affecting performance of which we are notified in writing, at our cost, as soon as practicable, if the fault is the result of faulty materials used by us or workmanship on our part. For this warranty to apply:
(i) You must notify us in writing as soon as practicable; and
(ii) It is not effective if the fault or damage arises from you or your staff’s misuse of the product, or any attempt to repair, adjust or rectify without our agreement; and
(iii) We will pass on to you the value of any warranty applying to any component included in our sale which is not manufactured by us and this will be additional to our warranty which applies to our materials and work.
(c) Subject to the foregoing sub-clauses with respect to warranty, Windsor specifically limits its liability in any claim under this contract of supply or otherwise for injury, loss or damage arising directly or indirectly from any fault in the product, to the value of any component, the failure of which is proved to be the responsibility of Windsor.
8. Drawings and Information
(a) Any drawings or information supplied by you for manufacturing a product or providing a service shall remain your property.
(b) Any drawings or information provided by us for the purpose of our manufacture or installation shall remain our property and must not be copied, shown to any third party, or used by you or any third party for the purpose of manufacture or use of technical information.
(c) All illustrations and drawings are to be regarded as approximate only and are not binding on us unless the precise dimensions and specifications for the product or service are supplied and agreed with us.
(d) Neither of us will misuse any confidential information, copyright, patent or design material or know-how, obtained by either of us from the other as a result of the relationship established by this agreement.
(e) We reserve the right to alter materials or componentry for any reason but such right shall not affect the warranty provisions of clause 7 and the price may be adjusted accordingly unless the alteration is made by our choice to assure performance and successful commissioning.
(f) Nothing in the foregoing clauses shall affect our copyright in any designs or material produced for or in connection with the work done for you.
(a) Any dispute or difference whatsoever arising out of or in connection with this contract shall be submitted to arbitration in accordance with and subject to the Arbitration Act 1996 (NZ) or Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitrations (Aust.) (whichever is applicable in the country in which the products are provided). The Parties expressly agree that they shall hold confidential, unless otherwise required by law or at the direction of a Court of competent jurisdiction, all information relating to the subject matter of the dispute as disclosed during or for the purposes of arbitral proceedings arising pursuant to this clause.
(a) If for any reason you defer the performance of the contract or cancel it, then you will be responsible to pay us any reasonable costs and expenses we have incurred as a result of the delay or cancellation.
(b) This set of Standard Terms and Conditions, any drawings or specifications supplied for the contract and formal contract and any agreed and signed variations represent the entire agreement between us and no preliminary or verbal representation or warranty will be of any effect.
(c) In the event that your order forms responding to our quotation contain conditions which are at variance with the express terms set out here then our terms shall prevail, unless there is explicit written agreement between us about a variation to our standard terms.
(a) This quotation and the work to which it relates including any illustrations, designs, drawings, specifications or any other information whether annotated in writing or otherwise (“Confidential Information”) is confidential and you shall:
(i) Maintain the confidentiality of the Confidential Information and treat the same with a degree of care and confidence at least equivalent to that which you treat your own confidential information;
(ii) Not disclose the Confidential Information, directly or indirectly, to any third party (except for your employees, officers and professional advisors who agree to keep the Confidential Information confidential) without our prior written consent; and
(iii) Not use the Confidential Information for any purpose other than in connection with deciding whether to accept this quotation.
(b) This confidentiality obligation does not apply to information which is already in the public domain (other than information which has been made public by you in breach of this obligation) or which was independently acquired by you.
(c) This confidentiality obligation shall continue to apply to proprietary information, knowhow, concepts and design material of ours which is used in connection with any contract or commercial arrangement with you arising out of this quotation.
12. Disclaimer regarding named products
In the event that you purchase gas appliance spare parts under the brands/names Karl Dungs, Kane or NAMCO, Windsor disclaims expertise in the application of the products into your equipment. Windsor gives no warranty that products in those names, unless selected and installed by us in terms of a specific agreement, are fit for any particular purpose. We will not be liable to you for any damage caused or loss suffered (either directly or indirectly) as a result of any of those products being selected and purchased by you and installed.
FS-1-109 (Dated 11/12/14)