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| 1 |
Application |
| 1.1 |
A tender by Rambor Pty. Ltd. (incorporating
King Cobra Mining Equipment) (“RAMBOR”)
with these Conditions of Sale (“these
Conditions”) shall be subject to these
Conditions. Any subsequent contract (“contract”)
between RAMBOR and a party (“the Purchaser”)
shall be governed by these Conditions as varied
only by any other terms and conditions expressly
agreed in writing between the Purchaser and
RAMBOR. |
| 1.2 |
RAMBOR may vary or withdraw its
tender at any time prior to acceptance. Subject
thereto, unless otherwise stated by RAMBOR
the tender shall remain valid for 30 days
from the date thereof. |
| 1.3 |
Any tender which quotes a budget,
preliminary or estimate price is subject to
variation in any respect and shall not be
considered an offer capable of acceptance
until confirmed in writing by RAMBOR. Any
preliminary specifications, illustrations,
drawings, data, dimensions and weights submitted
by RAMBOR with a tender are illustrative and
approximate only and do not form part of the
contract unless expressly confirmed and incorporated
therein. |
| 1.4 |
In these Conditions “tender”
means a tender, submission, proposal, offer
(including counter-offer) or quotation in
connection with goods and services the subject
of a contract. |
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| 2 |
Specification |
| 2.1 |
Goods and services shall be supplied
in accordance with these Conditions and any
specification included in the contract, and
the Purchaser is responsible for satisfying
itself as to the suitability of such goods
and services for the Purchaser's use or application.
In these Conditions “goods” means
the goods under the contract (if any) and
“services” means the services
under the contract (if any). |
| 2.2 |
RAMBOR shall not be bound by any
representation concerning the scope of supply,
performance or characteristics of goods or
services unless expressly incorporated in
the contract. |
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| 3 |
RAMBOR's
General Obligations
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| 3.1 |
RAMBOR will supply the goods and
services in accordance with the requirements
of the contract and, using its reasonable
endeavours, by the time(s) required by the
contract, with such time(s) capable of being
extended from time to time as provided for
in the contract. RAMBOR will ensure that the
goods conform to any applicable standards
and codes. RAMBOR will perform the services
with reasonable care and skill. |
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| 4 |
Purchaser's General
Obligations |
| 4.1 |
The Purchaser shall pay RAMBOR
the price for the goods and services (the
“contract price”) as the same
may be adjusted from time to time as provided
for in the contract. |
| 4.2 |
The Purchaser shall, in a timely
manner and so as to avoid any delay to RAMBOR,
provide all information, approvals, permits,
authorisations, licences, customs clearances,
instructions, materials, civil works, reports,
drawings, geotechnical and survey information,
access and other things which may be required
in relation to the performance of RAMBOR's
obligations and which are not expressly stated
to be RAMBOR's responsibility. The Purchaser
shall provide to RAMBOR any approval or comment
with respect to drawings submitted by RAMBOR
to the Purchaser within seven (7) days from
the date of the submission by RAMBOR of such
drawings unless some other time is provided
for in the contract. |
| 4.3 |
If RAMBOR considers the information,
documents and other particulars made available
to RAMBOR by the Purchaser are not sufficient
to enable RAMBOR to supply the goods and/or
services in accordance with the contract and
the provision of which is not reasonably to
be considered within the responsibility of
RAMBOR under the contract, RAMBOR may advise
the Purchaser who shall then provide at its
cost such further assistance, information
or other particulars as necessary in the circumstances
or as requested by RAMBOR as the case may
be. |
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| 5 |
Price |
| 5.1 |
Except as otherwise provided elsewhere
in the contract: |
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(a) |
invoices for goods and services
shall be submitted by RAMBOR on a monthly
basis; |
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(b) |
invoices shall be due and payable
within thirty (30) days of the date of invoice; |
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(c) |
any increase in the cost to RAMBOR
for the provision of the goods or services
as a result of a variation in exchange rates
or change in law between the date of RAMBOR’s
tender and the date of delivery shall be borne
by the Purchaser and the contract price shall
be adjusted accordingly. In these Conditions
“change in law” means when any
legislation, regulation, by-law, ordinance,
standard, award or order comes into effect
or is changed, including but not limited to
any new tax, duty or other impost or change
in the rate of any tax, duty or other impost.
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| 5.2 |
The Purchaser shall pay interest
to RAMBOR on any moneys outstanding on and
from the date thirty one (31) days after the
date of receipt of the relevant invoice by
the Purchaser (“the interest date”),
such interest to be calculated from the date
of receipt of the relevant invoice until such
outstanding moneys are paid. The interest
rate shall be the maximum per annum commercial
overdraft rate determined by the Commonwealth
Bank of Australia on the interest date plus
3%, accruing daily. |
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| 6 |
Goods and Services
Tax |
| 6.1 |
The contract price and all other
amounts referred to in the contract are exclusive
of GST. |
| 6.2 |
If GST is payable in respect of
any supply made under or in connection with
the contract, the recipient of the supply
must reimburse the supplier for the amount
of that GST, PROVIDED THAT the supplier must
first issue a tax invoice for the supply to
the recipient of the supply. |
| 6.3 |
If the amount payable for any
supply made under or in connection with the
contract is calculated by reference to any
cost or expense incurred by the supplier,
the amount payable is to be calculated using
the GST-exclusive amount of that cost or expense. |
| 6.4 |
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If there is an adjustment event
in relation to a supply made under or in connection
with the contract: |
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(a) |
the supplier must refund to the
recipient of the supply the amount by which
any GST reimbursed pursuant to clause 6.2
exceeds the adjusted GST; or |
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(b) |
the recipient of the supply must
pay the supplier the amount by which the adjusted
GST exceeds the GST reimbursed pursuant to
clause 6.2. |
| 6.5 |
For the purpose of calculating
the GST to be reimbursed to the supplier pursuant
to clause 6.2, the amount payable for the
supply or any part thereof which is expressed
or calculated in a currency other than Australian
dollars shall be converted into Australian
dollars: |
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(a) |
using the method required to be
used by the A New Tax System (Goods and Services
Tax) Act 1999 (Cth) or any relevant regulation,
ruling or determination under that Act; or |
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(b) |
if no method is specified by that
Act or any such regulation, ruling or determination,
using the relevant mid-market exchange rate
quoted by Westpac Banking Corporation for
the date on which the supplier issues an invoice
or receives payment for the supply, whichever
is earlier. |
| 6.6 |
In this clause 6, “GST”
means goods and services tax levied pursuant
to the A New Tax System (Goods and Services
Tax) Act 1999 (Cth) and the expressions “supply”,
“tax invoice”, “input tax
credit” and “adjustment event”
have the same meanings as in that Act. |
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| 7 |
Delivery, Transfer
of Title and Risk |
| 7.1 |
For delivery within Australia: |
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(a) |
except as otherwise provided elsewhere
in the contract the Purchaser shall be responsible
for off-loading the goods when delivered on
board the transportation vehicle to the nominated
address. All risks of loss or damage to the
goods shall transfer to the Purchaser on such
delivery; |
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(b) |
title (legal and beneficial ownership)
in the goods shall not pass to the Purchaser
until RAMBOR has been paid the contract price
for them in full. |
| 7.2 |
For exports to a country other
than Australia: |
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(a) |
except as otherwise specifically
provided elsewhere in the contract RAMBOR
shall deliver the goods FOB at the port of
despatch, and the Purchaser shall obtain any
necessary import clearances; |
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(b) |
title (legal and beneficial ownership)
in the goods and (as provided in INCOTERMS
2000) all risks of loss or damage to them
shall pass to the Purchaser upon loading on
board the transportation vehicle at the port
or depot or other point of export unless otherwise
provided in the contract. |
| 7.3 |
Until the passing of title in
the goods delivered to the Purchaser: |
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(a) |
the Purchaser shall hold the goods
as bailee to the same extent as if he were
a bailee for reward and shall clearly identify
the goods as belonging to RAMBOR. |
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(b) |
the Purchaser may not modify,
sell or otherwise remove, dispose or grant
to a third party any interest in the goods
and shall store and maintain the goods in
good condition and allow RAMBOR unrestricted
access to them for the purposes of inspection,
protection or removal, and, for the purpose
of such removal, the Purchaser hereby grants
RAMBOR an irrevocable licence to enter the
premises where the goods are and sever them
from any other property to which they may
be attached. |
| 7.4 |
If the Purchaser makes default
in any payment of an amount due to RAMBOR,
or commits a breach (as defined in clause
16.1) RAMBOR may without notice and without
prejudice to any of its rights and remedies
recover and/or re-sell the goods delivered
to the Purchaser or any part of them and may
enter upon the Purchaser's premises pursuant
to clause 7.3(b) to do all things necessary
in order to take possession of the goods.
The Purchaser will be liable for RAMBOR's
costs connected with the exercise of RAMBOR's
rights under this clause, payable on demand. |
| 7.5 |
In the event of the sale of the
goods by the Purchaser or the Purchaser otherwise
disposing, modifying, removing or granting
a third party interest in breach of clause
7.3(b), the Purchaser in its capacity as trustee
and fiduciary bailee will: |
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(a) |
hold the proceeds of such sale,
disposal or other action in a separate bank
account on trust for RAMBOR and not mix any
other funds with such proceeds of sale; and |
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(b) |
pay to RAMBOR from such proceeds
of sale, disposal or other like action the
amount which is owed by the Purchaser to RAMBOR
at the time the Purchaser receives such proceeds. |
| 7.6 |
In the event that the Purchaser
breaches clause 7.5 and mixes other moneys
with the proceeds of such sale, disposal or
other like action, then the Purchaser will
continue to hold on trust and as a fiduciary
bailee for RAMBOR, such part of the moneys
as relate to the goods delivered to the Purchaser.
Such part shall be deemed to be equal in dollar
terms to the amount which is owed by the Purchaser
to RAMBOR at the time the Purchaser receives
the proceeds of sale, disposal or other like
dealing. |
| 7.7 |
In the event that: |
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(a) |
the Purchaser uses the goods in
some manufacturing or construction process
of its own or of some third party; and |
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(b) |
the product resulting from the
manufacturing or construction process is sold
by the Purchaser, then the Purchaser will
holdon trust as a fiduciary bailee such part
of the proceeds of sale as relates to the
goods delivered by RAMBOR. Such part shall
be deemed to be equal in dollar terms to the
amount which is owed by the Purchaser to RAMBOR
at the time the Purchaser receives such proceeds
of sale. |
| 7.8 |
If the Purchaser does not take
delivery of goods at the nominated address
or otherwise at the time for delivery as provided
in the contract RAMBOR shall be entitled on
behalf of the Purchaser to put the goods into
storage at the Purchaser's expense. RAMBOR
shall be deemed to have delivered such goods
to the Purchaser on storage and shall be entitled
to payment on presentation of the warehouse
receipt in place of any bill of lading or
similar document otherwise required under
the contract. Risk shall pass to the Purchaser
on storage, but title shall only pass in accordance
with the provisions of this clause 7. |
| 7.9 |
For goods or services to be supplied
outside of Australia the contract price does
not include any duty, customs, fees or other
impost on the goods or services or on the
equipment, property or activities of RAMBOR,
its subcontractors or any of their respective
employees in relation to the contract levied
outside Australia or any tax on or withholding
from any payment to RAMBOR or on the contract
levied outside Australia and the same shall
be for the account of the Purchaser. |
| 7.10 |
(a) |
Up to the time the risk of loss
or damage to the goods passes to the Purchaser,
and subject to clause 7.10 (b), where loss
of or damage to the goods (excluding loss
or damage caused by or in any way connected
with off-loading of the goods) occurs during
transport or delivery of the goods by or on
behalf of RAMBOR, RAMBOR shall at its option
repair or replace the goods lost or damaged,
but shall not otherwise be liable for or in
respect of such loss or damage or any delay
consequent thereon. |
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(b) |
Unless a claim for the loss or
damage referred to in clause 7.10 (a) is made
in writing and received by RAMBOR within 7
days of delivery, or within the time necessary
to comply with any sub-contractor’s
conditions of carriage, whichever is the lesser,
RAMBOR shall not be liable for or in respect
of such loss or damage. |
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| 8 |
Warranty |
| 8.1 |
RAMBOR warrants that the goods
supplied shall, under proper use, be free
from defects in materials and workmanship
and conform to the contract. In this clause
8 "proper use" means installation,
commissioning, operation and maintenance in
accordance with RAMBOR documentation and good
engineering practice and “defect”
means any defect (including any omission)
in materials or workmanship and any non-conformity
with the contract. |
| 8.2 |
The warranty provided by RAMBOR
under clause 8.1 is conditional upon the Purchaser
adhering to the RAMBOR Service/Maintenance
Program, as amended from time to time, which
requires the Purchaser to remove the Product
from the work site to a service area: |
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(a) |
for cleaning, inspection and removal
of any external or internal build-up of oil,
water, dirt or other contaminants; and |
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(b) |
for the inspection and replacement
of filters and, where necessary, seals; and
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(c) |
the checking of the general operation
of the Product, and in each and every instance,
to undertake the Service/Maintenance Program
on or before the period which equates to every
200 hours of operating time or at intervals
of three (3) months, whichever is the earlier. |
| 8.3 |
Work performed under clause 8.2
must, as a condition of the RAMBOR warranty,
be performed only by a service agent authorised
in writing by RAMBOR. Failure to comply with
the Service/Maintenance Program, or this clause,
will render the Warranty void. |
| 8.4 |
The defective part for which a
claim for replacement is made pursuant to
this warranty must be returned to RAMBOR or
to a service agent duly authorised in writing
by RAMBOR for examination and the decision
as to whether the replacement of the defective
part falls within the provisions of this warranty
for replacement free of charge shall be made
at the sole discretion of RAMBOR. |
| 8.5 |
RAMBOR's obligation under this
warranty shall be limited to making good by
repair or replacement, at RAMBOR's option,
of any goods in which any defect appears and
is notified by the Purchaser to RAMBOR before
the expiry of a period ending 12 months after
first putting such goods into use or 18 months
after dispatch from RAMBOR’s premises,
whichever is earlier. In respect of goods,
which have been repaired or replaced hereunder,
RAMBOR's obligation shall in any event expire
24 months after first dispatch of the original
goods. Items which are replaced during the
warranty period shall become the property
of RAMBOR. |
| 8.6 |
RAMBOR's obligation under this
warranty shall not extend to any defect or
failure caused by fair wear and tear, or designs,
specifications and things which are outside
RAMBOR's scope of supply, accidents, misuse,
neglect, lack of proper use, or repairs or
modifications to the goods which have been
made without RAMBOR's approval. RAMBOR's obligation
is subject to RAMBOR being given prompt notice
by the Purchaser of the appearance of the
defect and a reasonable opportunity to investigate
it. Information requested by RAMBOR regarding
the warranty must be supplied to RAMBOR within
7 days of the request, otherwise the warranty
claim is void. |
| 8.7 |
RAMBOR warrants that the services
will be performed with due care, skill and
diligence, and in accordance with the contract.
RAMBOR's obligation under this warranty shall
be limited to, at RAMBOR's option, the performance
or reperformance, or the cost of performing
or reperforming, such services that fail to
meet the requirements of the contract where
that failure is notified by the Purchaser
to RAMBOR before the expiry of the period
ending 12 months after the performance or
purported performance of those services. |
| 8.8 |
RAMBOR's liability to the Purchaser
and the Purchaser's remedies in respect of
the goods and services and any loss or damage
resulting there from are solely and exclusively
as stated in this clause 8, and RAMBOR shall
have no liability unless notified by the Purchaser
to RAMBOR prior to expiry of the applicable
warranty period described above. |
| 8.9 |
The undertakings and obligations
of RAMBOR under this clause 8 are in place
of and exclude to the fullest extent permitted
by law all other warranties and conditions,
whether oral, written, statutory, express
or implied. Subject to clause 14.3, IMPLIED
WARRANTIES AND CONDITIONS OF FITNESS FOR PURPOSE
AND MERCHANTABILITY ARE HEREBY EXCLUDED TO
THE FULL EXTENT PERMITTED BY LAW. |
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| 9 |
Completion |
| 9.1 |
RAMBOR will make all reasonable
efforts to deliver the goods to the Purchaser
on the date agreed between the parties as
the Delivery Date, but will be under no liability
to the Customer should delivery not be made
on the Delivery Date. |
| 9.2 |
Delivery will be effected in accordance
with clause 7 of these Terms, and the Purchaser
will be liable for all freight costs, unless
the price quoted is specifically stated as
including freight costs. |
| 9.3 |
RAMBOR shall be entitled to a
reasonable extension of time for the performance
of its obligations hereunder where any of
the following causes delay to RAMBOR: |
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(a) |
variation in the scope of supply
under clause 10; |
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(b) |
obstructions or conditions which
could not have been reasonably foreseen by
RAMBOR; |
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(c) |
change in law; |
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(d) |
any act or omission of the Purchaser
or any contractor, consultant, representative
or agent thereof, including but not limited
to failure to confirm a start date and failure
to provide access; |
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(e) |
Force Majeure under clause 15;
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(f) |
suspension under clause 16.3; |
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(g) |
delays of municipal, government
or statutory authorities. |
9.4 |
The Purchaser shall pay RAMBOR
the reasonable costs incurred by RAMBOR (including
off site and on site overheads) as a result
of obstruction and/or delay caused by the
matters referred to in clause 9.1(a),(b),(c),(d),(f)
or (g). |
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| 10 |
Variations |
| 10.1 |
Unless otherwise agreed any variation
to the goods or services to be supplied hereunder
shall be valued in accordance with RAMBOR’s
schedule of rates for variations (a copy of
which may be inspected at the office of RAMBOR
and a copy of which shall be issued to the
Purchaser on request) existing at the time
the goods or services the subject of the variation
are supplied (or if none, variations shall
be valued at a reasonable rate and any rates
usually charged by RAMBOR for similar work
shall be deemed to be reasonable). |
| 10.2 |
Where any of the matters referred
to in clause 9.1(b), (c) or (d) reasonably
require a change in the goods or services
to be supplied or the conditions in which
RAMBOR is to perform its obligations hereunder
then RAMBOR shall be entitled to vary the
goods or services in such manner as RAMBOR
reasonably considers necessary and the value
of such variation valued in accordance with
clause 10.1 shall be added to or deducted
from the contract price as the case may be. |
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| 11 |
Drawings and
Documentation |
| 11.1 |
All designs, drawings and other
technical information relating to the goods
or services, including any software provided
by RAMBOR under the contract (“technical
information”), and the intellectual
property rights therein shall be and remain
the property of RAMBOR. Any drawings and documentation
for goods supplied hereunder shall be standard
issue technical literature. |
| 11.2 |
Any descriptive or shipping specifications,
illustrations, drawings, data, dimensions
and weights contained in RAMBOR’s catalogues,
price lists or publicity material or submitted
with RAMBOR’s tender are illustrative
and approximate only and do not form part
of the contract unless certified by RAMBOR
in writing, in which event they shall be subject
to generally recognised tolerances. |
| 11.3 |
Technical information shall be
kept confidential by the Purchaser, its employees,
agents or subcontractors, shall not be copied,
modified or disclosed by any of them and shall
not be used by them otherwise than for the
purposes of the operation and maintenance
of the goods. In the event that the Purchaser
does not accept RAMBOR’s tender it shall
return to RAMBOR all technical information
supplied by RAMBOR together with any copies
made. |
| 11.4 |
RAMBOR grants to the Purchaser
the non-exclusive and non-transferable right
to use the technical information, including
software, provided by RAMBOR for the life
of the goods supplied under the contract for
the purposes of their operation and maintenance
in the place and manner anticipated at the
time of RAMBOR’s tender and for no other
purpose. |
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| 12 |
Intellectual
Property Rights |
| 12.1 |
RAMBOR shall indemnify the Purchaser
against damages and costs awarded against
the Purchaser for infringement of any intellectual
property right granted or registered at the
date of contract in the country of destination
of the goods specified in the contract (or,
if none be specified, in Australia) and resulting
from the proper or intended use or sale of
the goods but this indemnity shall not apply
to any infringement which is due to the association
or combination of the goods with any other
article, apparatus or device or to any goods
or parts thereof made to designs supplied
by the Purchaser. |
| 12.2 |
This indemnity is conditional
on the Purchaser giving RAMBOR prompt written
notice of any claim for infringement and permitting
RAMBOR (at RAMBOR's expense) to conduct on
the Purchaser's behalf and in the name of
the Purchaser any litigation or negotiations
in respect thereof. The foregoing states RAMBOR's
entire liability for intellectual property
right infringement. |
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| 13 |
Tests on Completion |
| 13.1 |
RAMBOR shall at its own expense
carry out any tests required by the contract
together with any tests required by any government
or regulatory authorities, or absent such
requirements, RAMBOR may carry out its standard
tests on the goods. Any additional tests required
by the Purchaser shall be at the Purchaser’s
expense. |
| 13.2 |
RAMBOR shall give not less than
seven (7) days notice of its intention to
carry out any test that the Purchaser is entitled
to attend and, unless otherwise agreed, such
test may then be conducted by RAMBOR at the
nominated time and the Purchaser will be deemed
to have been present and to have accepted
the reported test results. The Purchaser shall
give RAMBOR such access as RAMBOR reasonably
requires to carry out such tests. |
| 13.3 |
Where the goods, or part thereof
fail to pass the tests on completion RAMBOR
will be given reasonable opportunity to carry
out that work which it considers necessary
to achieve the required performance, and to
reperform the tests. |
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| 14 |
Limitation of
Liability |
| 14.1 |
Notwithstanding any other provision
of the contract, the liability of RAMBOR to
the Purchaser, whether arising under or in
connection with the contract or the performance
or non-performance thereof or anything incidental
thereto, and whether by way of indemnity,
by statute (to the extent that it is possible
to exclude such liability), in tort (for negligence
or otherwise), or on any other basis in law
or equity is hereby limited and excluded as
follows: |
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(a) |
RAMBOR shall have no liability
whatsoever to the Purchaser for loss of use,
production, profit, revenue, business, data,
contract or anticipated saving, or for any
financing costs or increase in operating costs
or any economic loss or for any special, indirect
or consequential loss or damage; |
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(b) |
the total aggregate liability
of RAMBOR to the Purchaser is at all times
limited to the amount equal to the contract
price. |
| 14.2 |
The Trade Practices Act, 1974,
implies warranties, terms and conditions in
consumer contracts which cannot be excluded
or modified except as permitted under that
Act. In the event RAMBOR may be in breach
of any such warranty, term or condition as
is implied in this contract, the liability
of RAMBOR shall be limited: |
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(a) |
in respect of goods, at RAMBOR's
option, to the repair or replacement of the
goods or the cost of repairing or replacing
the goods; |
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(b) |
in respect of services, at RAMBOR's
option, to the reperformance of the services
or the cost of reperforming the services. |
| 14.3 |
For the purpose of this clause
14, RAMBOR contracts also on behalf of and
as agent for any and all subcontractors and
suppliers of RAMBOR in connection with the
contract which are bodies corporate related
to RAMBOR (as defined in the Corporations
Act). The cumulative liability of RAMBOR and
all such subcontractors and suppliers to the
Purchaser shall not, in aggregate, exceed
the liability of RAMBOR to the Purchaser under
this clause 14. |
| 14.4 |
The Purchaser shall ensure that
the liability of RAMBOR to the end user(s)
or owner(s) or beneficiary(ies) of the goods
or services the subject of the contract is
limited and excluded in accordance with this
clause 14. The Purchaser indemnifies RAMBOR
against claims of any kind by such end user(s)
or owner(s) or beneficiary(ies) to the extent
that RAMBOR would not be liable therefor to
the Purchaser under the contract if the claim
had been made by the Purchaser. |
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| 15 |
Force Majeure |
| 15.1 |
If performance by a party of any
obligation under the contract (other than
an obligation of the Purchaser to make payment)
is prevented, restricted or delayed by Force
Majeure then that party shall be excused from
and shall not be liable for failure in performance
to the extent of that prevention, restriction
or delay and the time for performance shall
be extended accordingly, subject to the terms
of clause 15.2. |
| 15.2 |
If performance is delayed for
more than four (4) months by Force Majeure
and the parties have not agreed upon a revised
basis for continuing the work at the end of
the delay, then either party may after that
period and while the cause of the non-performance
still exists terminate the contract by not
less than 30 days' notice in writing to the
other party. |
| 15.3 |
In these Conditions “Force
Majeure” means act of God, act or omission
of government, war, blockade, embargo, hostilities,
fire, earthquake, flood, explosion, accident
at sea, inclement weather, and except where
restricted to employees of RAMBOR, industrial
condition, sabotage or commotion, or by any
cause (whether similar or not to any of the
above events) beyond the reasonable control
of the party whose performance is affected. |
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| 16 |
Default |
| 16.1 |
Without limiting any other rights
it may have, a party (the “notifying
party”) may give a written notice to
show cause to the other party (the “defaulting
party”) in the event that the defaulting
party: |
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(a) |
abandons or repudiates the contract; |
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(b) |
commits a continuing or material
breach of the contract; |
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(c) |
suspends performance of the contract
without reasonable cause; |
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(d) |
fails to pay monies due under
the contract; |
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(e) |
purports to assign the whole of
the contract without the other party’s
consent; or |
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(d) |
appears likely to become subject
to an Insolvency Event described in clause
18, (hereinafter a "breach"). |
| 16.2 |
The notice shall state (i) that
it is a notice pursuant to this clause 16,
(ii) the alleged breach, (iii) that the defaulting
party is required to show cause in writing
within seven (7) days why the notifying party
should not exercise a right referred to in
clause 16.3. |
| 16.3 |
If the defaulting party fails
to show reasonable cause by the stated time,
the notifying party may, by written notice,
suspend the whole or any part of the performance
of the contract. The suspension shall be removed
if the defaulting party remedies the breach.
The notifying party may, by written notice
to the defaulting party, terminate the contract
if within twenty one (21) days of receipt
by the defaulting party of the notice under
clause 16.1 the defaulting party fails: |
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(a) |
to remedy the breach; or |
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(b) |
if the breach is not capable of
remedy, to make other arrangements to the
reasonable satisfaction of the notifying party. |
| 16.4 |
Suspension or termination of the
contract pursuant to this clause 16 shall
be without prejudice to the rights of either
party accruing up to the date thereof. |
| 16.5 |
If the contract is terminated
pursuant to this clause 16, the parties' remedies,
rights and liabilities shall be the same as
they would have been under the law governing
the contract had the defaulting party repudiated
the contract and the notifying party elected
to treat the contract as at an end and recover
damages. |
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| 17 |
Security |
| 17.1 |
The Purchaser, including its directors
in the case of a corporation, and its partners
in the case of a partnership, hereby charge
their right, title and interest in any and
all realty of which the Purchaser and the
persons referred to herein, whether solely,
jointly or otherwise are or become a registered
proprietor in favour of RAMBOR for the obligations
of the Purchaser under these Conditions. The
Purchaser and the persons referred to herein
acknowledge that RAMBOR may pursuant to its
interest conferred under this clause register
a caveat on any realty referred to herein. |
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| 18 |
Insolvency |
| 18.1 |
If either party becomes bankrupt
or insolvent or makes any agreement with its
creditors compounding debts or if, being an
incorporated entity, any proceedings are begun
in respect of it applying for the appointment
of a liquidator, administrator, receiver or
similar official for it or all or any substantial
part of its assets or seeking an order of
relief against it as debtor or under any law
relating to insolvency, readjustment of debt,
reorganisation, administration or liquidation
(each such event or process referred to in
these Conditions as an “Insolvency Event”),
the other party may at any time by written
notice terminate the contract forthwith. |
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| 19 |
Entire Contract |
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Except as otherwise expressly
provided in this contract, and subject to
clause 14.3, RAMBOR excludes all statements,
representations, warranties, conditions, promises,
undertakings, covenants and other provisions,
express or implied (and whether implied by
law including Act of Parliament or otherwise)
relating to RAMBOR’s tender, the goods
or the services or their delivery or supply,
being provisions that might otherwise form
part of the contract or be collateral to or
form parrot of any agreement that is collateral
to the contract. |
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| 20 |
Severance |
| 20.1 |
If any provision or part of any
provision of these Conditions is invalid,
illegal or unenforceable, such provision or
part thereof shall be severed herefrom and
the remainder shall continue in full force
and effect. |
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| 21 |
Waiver |
| 21.1 |
Any waiver by RAMBOR of strict
compliance with these Conditions shall not
(i) be deemed a waiver unless it is in writing
and signed by an authorised officer of RAMBOR,
nor (ii) be deemed a continuing waiver of
compliance. |
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| 22 |
Proper Law |
| 22.1 |
The contract shall be governed
by the law of New South Wales, Australia and
the parties agree to submit to the jurisdiction
of the courts of that State and any courts
having appellate jurisdiction from them. |
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| 23 |
Assignment and Transfer |
| 23.1 |
Neither RAMBOR nor the Purchaser
shall assign or transfer the whole of the
contract or any interest therein or in any
monies payable thereunder without the written
consent of the other party. |
| 23.2 |
Nothing contained in this clause
23 shall prevent RAMBOR from subcontracting
any part of the work under the contract as
RAMBOR deems appropriate. |
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| 24 |
Dispute Resolution |
| 24.1 |
If a difference or dispute between
the parties arises in connection with the
subject matter or interpretation of the contract,
including a Dispute concerning a claim in
tort, under statute, or on any other basis
in law or equity available under the law governing
the contract ("Dispute"), either
party may by hand or registered post give
the other party written notice of dispute
identifying and providing details of the Dispute
and entitled Dispute Notice ("Dispute
Notice"). |
| 24.2 |
Within seven (7) days of receipt
of a Dispute Notice, representatives of the
parties having authority to bind the parties
shall confer to seek to resolve the Dispute
or agree on a method of doing so and whether
that method shall be binding. If a resolution
or method of resolution has not been agreed
within twenty one (21) days of the service
of Dispute Notice, the Chief Executive Officers
of the parties shall confer for the same purpose
as the parties' representatives. All aspects
of such conference(s) shall be privileged.
|
| 24.3 |
Except for the enforcement of
payment due under the contract or to seek
injunctive or urgent declaratory relief, and
subject to any agreement to the contrary,
neither party may institute legal proceedings
in respect of any Dispute unless a Dispute
Notice in respect thereof has first been given
and then only after a period of twenty eight
(28) days from receipt of such Dispute Notice
has elapsed. |
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| 25 |
Interpretation |
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(a) |
Clause headings shall not form
part of, and shall not be used in the interpretation
of, the contract. |
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(b) |
Words in the singular include
the plural and words in the plural include
the singular, according to the requirements
of the context. |
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(c) |
Words importing a gender include
every gender. |
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(d) |
Delivery acronyms such as FCA,
FOB, CIF used in RAMBOR’s tender or
contract shall be interpreted in accordance
with INCOTERMS 2000 edition. |
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(e) |
When the following RAMBOR conditions;
PRICE ADJUSTMENT CONDITIONS and/or INSTALLATION
CONDITIONS and/or MAINTENANCE CONDITIONS,
are used herewith they shall be read and construed
as forming part of these Conditions. |
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(f) |
For the purpose of clauses 14.1(b): |
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(i) |
where the total consideration payable to RAMBOR
under the contract is a fixed amount set out
in or calculable by reference to the contract,
"the contract price" means that
amount as the same may have been adjusted
from time to time as provided for in the contract;
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(ii) |
where (i) above does not apply, "the
contract price" means the amount actually
paid to RAMBOR under the contract, provided
that where liability arises in respect of
goods supplied upon request from time to time,
"the contract price" means the amount
of the consideration paid to RAMBOR under
the contract for the goods in respect of which
such liability arises; |
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Where the amount of "the
contract price" cannot be determined
in accordance with (i) or (ii) above for the
purpose of clause 14.1(b) and 14.2, "the
contract price" means one hundred thousand
dollars ($100,000). |
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| END |
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