TERMS AND CONDITIONS OF CONTRACT

 

 

1 Definitions and Interpretation
 

The following definitions shall be used for the purpose of interpreting this Contract, and shall apply throughout this Contract.
 

1.1 "Conditions" shall mean these terms and conditions as expressed herein and are referred to as Conditions of Contract for Services.
 
1.2 "Contractor" shall mean McKechnie Iron Foundry Pty Ltd  (ABN 20 007 541 317) having its registered office at 585 Grand Junction Road, Gepps Cross, South Australia 5094.
 
1.3 Contract Price” shall mean the amount, which the Purchaser must pay the Contractor under these conditions for the performance of the Services by the Contractor (exclusive of any applicable Goods and Services Tax, which shall be paid by the Purchaser to the Contractor in addition to the amount payable under the Contract).
 
1.4 Contract” shall mean the entire final and concluded agreement between the Contractor and the Purchaser relating to the execution of the services which is as constituted by the documents comprising:
 
(a) these conditions;
(b) the drawings;
(c) the specification;
(d) those documents submitted by the Contractor to the Purchaser as the contractor’s tender;
(e) the document from the Purchaser accepting the tender and the Contract Price
and in the case of any conflict between the provision of any of the documents constituting the Contract, the order of precedence in which the provision of each document shall apply shall be the order in which the documents are listed above in descending order.
 
1.5 Services” shall mean the services performed or to be performed by the Contractor under the Contract (including any drawings, calculations, statements, reports or other documents to be prepared or prepared by the Contractor and delivered to the Purchaser in consequence of the services provided).
 
1.6 "Purchaser” shall mean the person engaging the Contractor to perform the Services.
 
2 Contractor’s Warranty
 
2.1 Contractor warrants that it shall exercise reasonable skill, care and diligence in the performance of the Services and shall carry out the Services in accordance with good Foundry practice on or before the date for completion as extended from time to time.
 
2.2 Pursuant to Contractor’s warranty under Sub-Clause 2.1 above, Contractor shall, re-perform such of the Services as may be necessary in order to rectify any defects in the Services and shall rectify at no additional cost to Purchaser any discrepancies, errors or omissions in the drawings, documentation and/or other data supplied by it under the Contract whether the same shall have been approved by Purchaser or not, provided that such discrepancies, errors or omissions are not due to inaccurate information furnished in writing to Contractor by Purchaser and provided further that same are notified to Contractor in writing prior to expiry of a period of        1        month from the date of completion of the Services or the date of any earlier termination of the Contract.
 
2.3 Save as provided in Sub-Clause 2.2 above no other liability shall attach to Contractor for or in connection with any defects, errors, discrepancies or omissions in the Services (including the results thereof).
 
2.4 The Contractor Warranties here expressed relate to any defect in any services provided by the Contractor.  No warranty is given with respect to services provided which comply in all respects with any design or specification submitted to the Contractor by the Purchaser where such design or specification is itself defective.
 
3 Price Variations
 
3.1 Each quotation is given on the basis of costs applicable at the date of the quotation. If a contract is not commenced within 30 days of the date of the quotation the price quoted shall be subject to reasonable variations to take into account any increases in labour and/or material costs.
 
4 Definitions on Order
 
4.1 Pattern manufacture should be nominated as timber or polystyrene, timber is a permanent pattern, polystyrene is a pattern used for that order only (unless specified on quote). Metal should be stated in an Australian or a common International standard.
 
5 Use of Goods
 
5.1 It is not the Contractors practice to recommend or warrant particular grades of metal or technical advice with respect to the “intended use” of the casting.
 
6 Terms of Payment
 
6.1 Unless it is otherwise specifically agreed in writing by the Contractor the purchaser will:
6.1.1 Pay in full each month the monthly invoice of the Contractor and within thirty days from the receipt thereof by Purchaser;
6.1.2

Make all payments to the Contractor in Australian Currency;

7 Property and Risk
 
7.1 Property in the goods shall not pass from McKechnie Iron Foundry Pty Ltd  to the purchaser until the purchaser has paid for them in full.  The risk of loss of or damage to the goods shall pass to the purchaser on delivery.
 
8 Indemnity and Insurance
 
8.1 Contractor shall indemnify Purchaser and hold Purchaser harmless from and against any and all liabilities for death, illness or injury to any of Contractor’s personnel or for loss of or damage to the property of Contractor or the property of its personnel, and against all claims, demands, proceedings and causes of action resulting there from howsoever caused including where such is caused by the negligence or breach of statutory duty of Purchaser.
 
8.2 Purchaser shall indemnify the Contractor and hold Contractor harmless from and against any and all liabilities for death, illness or injury to any of Purchaser’s personnel or for loss of or damage to the property of Purchaser or the property of its personnel and against all claims, demands, proceedings and causes of action resulting there from howsoever caused including where such is caused by the negligence or breach of statutory duty of Contractor.
 
8.3 Except as provided by Clause above, Purchaser shall indemnify Contractor and hold Contractor harmless from and against all liabilities arising from pollution emanating from the property of the Purchaser, and against all claims, demands, proceedings and causes of action resulting there from including where such is caused by the negligence or breach of statutory duty of Contractor.
 
8.4 Contractor shall maintain full and sufficient insurance cover with a first class insurance company in respect of its liabilities under Sub-Clause 8.1.
 
9 Suspension
 
9.1 In the event of any delay of seven days or more in payment of any sum due to Contractor under the Contract, Contractor shall have the right by notice in writing to suspend further performance of the Services, and if such delay persists for more than thirty days, terminate the Contract by further notice in writing to Purchaser to such effect.
 
9.2 Purchaser shall grant such extension (s) of time for the performance of the Services as may be fair and reasonable and shall compensate Contractor for all costs and expenses reasonably incurred by Contractor as a result of or in connection with suspension or termination of the Services pursuant to Sub-Clause 9.1 above.  In the event of such termination, the Contractor shall cease to have any liability under or in connection with the Contract.
 
10 Confidential Information
 
10.1 All information obtained by Contractor from the Purchaser for or in connection with the Contract and Contractor’s performance of the Services shall be considered confidential and shall not be used by Contractor other than for the purposes of the Services or divulged by Contractor, its servants or agents to any person, firm or corporation other than to its subcontractors or consultants engaged in the performance of the Services without the Purchaser’s prior consent in writing.
 
10.2 The foregoing restrictions shall not apply to any information disclosed by Purchaser to Contractor which:
10.2.1 at the time of disclosure is in the public domain, or
10.2.2 after disclosure becomes part of the public domain, or
10.2.3 was rightfully in Contractor’s possession at the time of disclosure, and was not acquired   directly or indirectly from Purchaser, or
10.2.4
 
Contractor rightfully receives from any third party who did not receive such information directly or indirectly from Purchaser with limitation or restriction as to use or disclosure.
11 Customer Supplied Items
 
11.1 The Contractor shall not be responsible for any loss or damage occurring to customer supplied items (such as drawings, patterns, moulds, frames ,raw materials, tooling or articles for heat treatment). The Customer shall insure these items against all risk whilst in the Contractors custody.
 
11.2 It shall be the Customers responsibility to approve pattern equipment manufactured or altered on their behalf, before production of castings. Therefore, any castings rejected by the Customer due to pattern faults shall be at the Customers cost. The Customer may leave any pattern equipment in storage at the Contractors premises, but the Contractor will not be held responsible for any destruction or theft from it’s premises for such patterns and equipment.
 
12 Force Majeure
 
12.1

No failure or omission by either Party to carry out or observe any of the stipulations, conditions or obligations to be performed under the Contract shall, except for an obligation to pay monies hereunder, give rise to any claim against such Party or be deemed to be a breach of the Contract if such failure or omission arises from any cause reasonably beyond the control of that party.
 

13 Title and Rights of Use
 
13.1 Technical information (including drawings, designs, specifications, electronically recorded and stored data, computer programs and calculations) developed or arising during the Services or in connection with the performance thereof, including the results thereof, and all intellectual property rights therein shall belong to Contractor.
 
14 Limitation of Contractor’s Liability
 
14.1 Notwithstanding any other provision contained in this Contract, Contractor shall in no event be liable for any loss of use, loss of revenue, loss of profit, loss of contracts, loss of product or production, loss of business opportunity or any consequential or indirect loss whatsoever, suffered or incurred by the Purchaser, howsoever arising out of or in connection with the Contract or the Services, including where such is caused by the negligence or breach of statutory duty of Contractor.
 
15 General Provisions
 
15.1 Both the Purchaser and the Contractor shall take all reasonable steps to mitigate any loss resulting from any breach of the Contract by the other Party.
 
16 Settlement of Disputes
 
16.1

In the event that any dispute shall arise between the Parties relating to the Contract, the Parties shall attempt to resolve the matter amicably by negotiation.  In the first instance the matter shall be discussed by the Senior Managers. 
In the event that the matter remains in dispute the Managing Directors of the Parties shall meet as soon as reasonably practicable to resolve the matter in good faith.

In the event that the said Managing Directors are unable to resolve the matter in dispute, the parties agree to refer the matter to non-binding Alternative Dispute Resolution by way of independent mediation.  The mediator should be nominated by the President of the Institute of Arbitrators and Mediators South Australian Division and the costs of the mediator shall be borne by the Parties in any event and each party shall bear their own costs associated with the mediation.
 

16.2 Any remaining dispute or difference arising between the Parties concerning the construction of the Contract or the rights, duties or liabilities of either of the Parties and which cannot be settled by such amicable means or by such alternative disputes resolution shall be referred to and settled by the jurisdiction of the courts of the South Australia.
 
Neither Party shall be entitled to cease, delay or suspend performance of the Contract simply by reason of the existence of such a dispute proceedings having been commenced.
 
17 Applicable Law
 
17.1 The Contract shall operate and be construed in all respects in accordance with the laws of   the state of South Australia in which the Services are performed.