Terms and conditions of trade

1 Application

1.1 These Terms and Conditions of Trade apply to the ordering, purchase, fulfilment and delivery of Goods ordered by the Client from Promach together with, as applicable:

1.2 Refund, Return, Repair Policy;

1.3 Shipping Policy;

1.4 Consumer Guarantees;

1.5 Privacy Policy; and

1.6 Client Credit Application (the Agreement) despite any contrary terms constitutes the entire agreement between the parties to the exclusion of all other terms and conditions. If the Client does not accept the Agreement, the Client must refrain from making a purchase.

1.7 By ordering the Goods, the Client accepts the terms of Agreement and is bound by them, and an agreement is formed between Promach and the Client.

1.8 The terms forming part of the Agreement may be amended by Promach at any time without notice. Purchases following such amendment will represent an agreement by the Client to be bound by the Agreement as amended. We recommend the Client review the Terms and Conditions of Trade for any amendments each time the Client uses the Website and before placing any Order or making a purchase of Goods.

1.9 Should Promach choose to provide the Client with notice of amended terms, the Client agrees to receive email notification of the amendments from Promach or a selected third party.

1.10 No representations, inducements, promises or agreements between the parties will be of any force or effect in varying these terms of Agreement.

 

2 Party Representatives

2.1 The parties acknowledge and agree that:

2.1.1 the individual named in the Order as the party’s representative is authorised to exercise all rights, powers, authority and functions of the party it represents under this Agreement;

2.1.2 either party may, at any time, replace its nominated representative and must notify the other party of any such replacement; and

2.1.3 Promach is entitled to charge an additional fee for additional work resulting from failure of the Client to nominate a Client Representative as well as any inconsistent or multiple Client directives including directions from persons other than the Client Representative.

 

3 Relationship

3.1 The parties are independent contracting parties with rights, obligations and liabilities as specified in this Agreement. Nothing in this Agreement will be construed as establishing any partnership, joint venture, employment or other relationship between the parties.

 

4 Corporate Authority

4.1 Each party hereby represents and warrants to each other party that if it is a corporate entity:

4.1.1 it is validly existing under the laws of its place of incorporation;

4.1.2 the entering, execution and delivery of this Agreement has been properly authorised by all necessary corporate or other action required by it;

4.1.3 it has full corporate power and lawful authority to execute and deliver this Agreement and to perform or cause to be performed its obligations under this Agreement; and

4.1.4 this Agreement does not conflict with or result in the breach of or default under any provision of its constitution or any material term or provision of any agreement or deed or any writ, order or injunction, judgment, law, rule, or regulation to which it is a party or is subject or by which it is bound.

 

5 Trust Authority

5.1 Each party hereby represents and warrants to each other party that if it has entered into this Agreement as the trustee of a trust (Trust):

5.1.1 the party is validly appointed as the trustee(s) of the Trust, is not in breach of its obligation as trustee and no circumstances exist pursuant to which it may be removed as trustee of the Trust;

5.1.2 this Agreement is duly executed in proper exercise of the powers of the party as trustee of the Trust and all formalities required by the trust deed of the Trust in connection with this Agreement have been complied with; and

5.1.3 the execution and performance of this Agreement is for a proper purpose of and provides commercial benefit to the Trust.

 

6 Promotional Material, Performance, Goods Specifications

6.1 The specifications, descriptions and illustrations contained on the Website, any catalogues, price lists and other advertising material are intended merely to present a general idea of the Goods described therein.

6.2 All drawings, catalogues, printed matter are informative only and weights, measurements, powers, capacities or other particulars of Goods offered are stated in good faith and, subject to the terms hereof. Inaccuracies shall not void or violate these Terms and Conditions of Sale nor be made the basis of any claim against Promach or justify rejection of the Order or of the Goods.

6.3 The Client acknowledges that it has the sole responsibility of satisfying itself that the Goods is suitable for the use of the Client, or any contemplated use of the Client, and that it has conducted its own investigations and has not relied upon any information, statement, advice or representation by the Client of or in relation to:

6.3.1 the operating and/or performance parameters of the Goods;

6.3.2 the outcomes that the Goods may achieve;

6.3.3 the suitability of the Goods to any application, installation or physical environment; and

6.3.4 the appropriateness of the use of the Goods outside Australia.

6.4 The Client acknowledges and agrees that:

6.4.1 all drawings, illustrations, specifications, dimensions, particulars of performance, designs, plans, computations, descriptions, weights, measurements and statements advertised or submitted to the Client by Promach are, unless otherwise indicated, estimates only and are Promach’s property and must not be copied or disclosed in any way or used for any purpose whatsoever without Promach’s prior written consent;

6.4.2 any representation as to the operating parameters of the Goods are representative of assumed conditions in a well-managed plant, with experienced, adequate and efficient operators, appropriate services, and proper use of satisfactory materials;

6.4.3 the actual performance of the Goods in situ might be affected by external factors (including, without limitation, environmental conditions) beyond Promach’s control;

6.4.4 incorrect and/or negligent installation, application or use of the Goods may cause loss of life, injury and/or damage to property; and

6.4.5 Promach makes no representation, warranty or assurance as to any of the matters listed in clause 6.3 and Promach will not be liable for any loss or cost arising from those matters to the maximum extent permitted by law.

6.4.6 Promach may make any changes or improvements to the design or specification of the Goods at any time without giving prior written notice to the Client unless otherwise agreed in writing.

 

7 Orders

7.1 Representations of Goods for sale made by Promach do not constitute an offer to sell but an invitation to treat.

7.2 (Order) An Order includes a verbal or written order placed by the Client for the supply of Goods in the manner specified by Promach from time to time and otherwise in accordance with these Terms and Conditions of Trade.

7.3 All Orders placed by the Client and accepted by Promach, or a quotation given by Promach and accepted by the Client at the price advertised and/or quoted in accordance with the terms of the Agreement by:

7.3.1 the Client confirming the order details (verbally or in writing) or executing an order form or quotation for the Goods with Promach;

7.3.2 the Client making payment in full (plus any applicable shipping delivery charges) or as otherwise noted on the order or quotation; and

7.3.3 the acceptance of that order by Promach. Orders will be deemed to have been received by Promach at the time Promach sends an Order confirmation to the Client’s nominated email address.

7.4 (Website Order) The Client and Promach enter into a contract for the sale and supply of Goods by the Client making an offer to purchase Goods at the price advertised on the Website and in accordance the terms of the Agreement by:

7.4.1 placing an electronic Order for the Goods using the Website;

7.4.2 the Client confirming the Order details in accordance with the procedure on the Website;

7.4.3 the Client making payment in full (plus any applicable shipping/delivery charges) on the Website; and

7.4.4 the acceptance of that offer by Promach. Orders will be deemed to have been received by Promach at the time Promach sends an Order confirmation to the Client’s nominated email address.

7.5 A quotation by Promach is subject to correction by Promach at any time for errors and omissions.

7.6 Without limiting clause 7.5, Promach may withdraw a quotation or vary any part of a quotation, including without limitation any price specified in the quotation, at any time.

7.7 Unless otherwise agreed in writing by Promach, a quotation is open for acceptance for 30 days from date of the quotation.

7.8 Once the Client has placed the Order, the Client cannot cancel or revoke the Order, unless expressly provided for in these Terms and Conditions of Trade.

 

8 Supply, Delivery, Collection of Goods

8.1 Promach may suspend or cancel supply or delivery of the Goods to the Client if:

8.1.1 Promach is unable to source sufficient materials necessary to supply the Goods; or

8.1.2 Promach is otherwise prevented by circumstances outside its control from supplying the Goods.

8.2 Promach reserves the right and may, in Promach’ s absolute discretion, decline to accept an Order and may cancel the Order at any time prior to delivery of the Goods.

8.3 In the event of a cancelled Order not delivered to the Client, Promach has no liability to the Client for any loss or damage of any kind (including consequential loss or damage, including loss of profit or loss of opportunity). However, Promach will, in relation to that Order, refund any portion of the Price already paid to the extent it exceeds the aggregate of all amounts then owing to Promach by the Client. The Client will be provided with email confirmation of the cancellation and refund.

8.4 If Promach cancels an Order, the Client must pay to Promach all costs which Promach, its suppliers and/or subcontractors have incurred directly or indirectly, or for which they are liable, under the terms of the Order. Promach will not require payment for any standard part or material which it is able to use in any other order.

8.5 Any prepayment made by the Client will be set off against sums due to Promach under this clause 8.3. Any representations made about stock availabilities are accurate to the last known stock level and are subject to change.

8.6 Promach shall not be liable for any delay in performing any of its obligations under these Terms and Conditions of Sale and if such delay is caused by circumstances beyond the reasonable control of Promach, Promach shall be entitled to a reasonable extension of time for the performance of such obligations.

8.7 If the Client have any query about the progress of the Order, please contact the Customer Support Team. Please provide the Order number.

 

9 Time

9.1 Promach makes no warranty as to the time of supply or delivery of the Goods. All time periods and dates specified by Promach are indicative and estimates only. Delay in supply or delivery does not affect the Client’s obligation to accept or pay for the Goods.

9.2 Promach is not liable to the Client for any loss or damage (including consequential loss or damage) resulting from a delay or failure to notify the Client of a delay.

9.3 An indicative or estimated timeframe for supply or delivery of Goods by Promach to the Client commences from the later of the:

9.3.1 date of acceptance of the Order;

9.3.2 the date of payment of the first instalment of the Price due under the terms of the Order; and

9.3.3 the date of receipt by Promach from the Client of all samples, information, drawings, licences and consents necessary to proceed with the Order.

9.4 Promach will not deliver Goods to PO Box addresses.

9.5 Where the Client has given written authority for Goods to be delivered without a signature, any and all included insurance cover will be voided.

9.6 The couriers or postal services nominated by Promach will deliver Goods during local business hours (9am to 5pm, Monday to Friday).

9.7 Promach reserves the right to not ship to remote or rural locations.

 

10 Price

10.1 Prices shown are Australian dollars exclude GST where applicable. The Price quoted in an Order is for the supply of the Goods Ex Works (from the place of supply) (and does not include freight, delivery and handling charges), unless otherwise stated on the Order or as agreed in writing by Promach. Prices are subject to change without notice.

10.2 Unless otherwise stated, any accessories shown in any image of Goods are not included in the price.

10.3 Promach reserve the right to correct any errors published on the Website and any promotional material.

10.4 The Client must pay to Promach the price for the Goods (Price) as specified in the Order.

10.5 The Price quoted in an Order applies only to the quantities and deliveries specified in the Order.

10.6 Unless otherwise stated in an Order, the Price quoted is based on the cost of material, labour, foreign currency exchange rates, freight and delivery costs at the date of quotation. Should variations occur either by rise or fall in either of these costs prior to delivery of the Goods, Promach may adjust the quoted Price accordingly by notice in writing to the Client.

 

11 Additional Charges

11.1 Unless otherwise stated in the Order or agreed in writing with Promach, in addition to any Price payable, the Client must pay to Promach:

11.1.1 any costs of and fluctuations in the delivery, unloading, reloading, collection and installation of the Goods;

11.1.2 any costs caused by inaccuracies arising through orders, instructions or information given by the Client to Promach;

11.1.3 any costs of from changes to installation or delivery requirements of Promach prior to, during, or after installation or delivery of the Goods;

11.1.4 any applicable law (or change in law), tax, Goods and Services Tax (GST), stamp duty, duty, fee, levy or charge of any nature whatsoever imposed by any semi government or government authority;

11.1.5 any fluctuations in the costs of materials, packaging and labour/wages;

11.1.6 any amounts in fluctuations of the foreign exchange rates; and

11.1.7 any other charges detailed in the Order and associated tax invoice.

11.2 If the Client requests operational guidance or training on the use of the Goods, Promach may provide such guidance or training to the extent that Promach is able and the Client agree to pay the cost for the provision of those services at the standard hourly rates as determined by Promach from time to time and as otherwise agreed between the Client and Promach. That engagement and service will be governed under the terms of the Agreement.

11.3 Any tooling charges are payable by the Client either as an upfront payment or by amortised payments, as agreed in writing by the parties. Amortised tooling remains the property of Promach unless otherwise agreed in writing.

 

12 Payment

12.1 Subject to the Order, the Client must pay any amount due to Promach within 30 days of the date of issue of an invoice by Promach to the Client.

12.2 Subject to the Client Credit Application and Order (and unless otherwise agreed in writing by the parties), Promach will invoice the Client the Price in instalments as follows:

12.2.1 50% of the Price at the time of acceptance of the Order; and

12.2.2 the remaining balance of the Price on installation of the Goods or within 30 days of despatch of the Goods, whichever is the sooner.

12.3 Any amounts payable by the Client to Promach are exclusive of any government charges, duties or taxes, including sales tax, goods and services tax (GST), use or excise taxes or similar taxes, unless specified otherwise by Promach in writing. Any such charges, duties or taxes are payable by the Client.

12.4 The Client is deemed to have accepted any tax invoice if no dispute is raised within 7 days of the date of the tax invoice.

12.5 A dispute will not affect payment of non-disputed amounts on the same invoice. The Client must not withhold payment in whole or in part, or claim any right to deduction or set off, in respect of any money owed to Promach for any reason.

12.6 To the extent permitted by law, Promach will not be responsible for any damage or consequential loss (whether direct or indirect) suffered by the Client where a credit card is fraudulently used or is used in an unauthorised manner.

12.7 If the Client’s selected payment method triggers Promach’s fraud prevention protocols, Promach may contact the Client to confirm additional details, or rescind the Order. In this case, until the Order has passed Promach’ s fraud prevention protocols the Order will not be fulfilled. If the Client does not provide the requested information within up to 7 days, the Order will be cancelled, and the payment will be refunded back to the method in which the Client paid (less merchant charges). These information requests are sent to help protect credit card holders from online fraud.

12.8 The Client must fully indemnify Promach for any costs and expenses it incurs because of any overdue payment, including dishonour fees, collection fees and legal fees (on a full indemnity basis).

12.9 If the Client:

12.9.1 fails to pay any amount owing to Promach by the applicable due date for payment or otherwise fails to comply with any of the terms of this Agreement; or

12.9.2 becomes subject to an Insolvency Event, any and all amounts owing by the Client to Promach shall immediately become due and payable and Promach may, at its option, cancel the Order or cancel or suspend despatch of the Goods. Cancellation of an Order is without prejudice to Promach’s accrued rights.

 

13 Interest

13.1 Without prejudice to any other right of Promach, if the Client fails to pay Promach an amount owed to Promach when due, the Client must pay on demand interest on such amount at the rate of 6% per annum above the base rate charged from time to time by Promach’s principal bankers for unsecured overdrafts of less than $100,000.

13.2 Interest accrues from day-to-day from the day the payment was due until and including the day that the relevant payment is made in full to Promach by the Client.

 

14 Credit

14.1 The Client authorises Promach to:

14.1.1 obtain from a credit reporting agency a credit report containing personal information about the Client pursuant to section 18K(1)(b) of the Privacy Act 1988 (Cth);

14.1.2 obtain a report from a credit reporting agency and other information in relation to the Client’s commercial credit activities;

14.1.3 in accordance with section 18N(1)(b) of the Privacy Act 1988 (Cth), give to and obtain from any credit provider that may be named in a credit report issued by a credit reporting agency information about the Client’s credit arrangements, which may include information about credit worthiness, credit standing, credit history or credit capacity; and

14.1.4 use any credit information for the purposes of this Agreement (section 18L(4) of the Privacy Act 1988 (Cth)) and in assisting the Client to avoid defaulting on payment obligations, notifying credit providers of a default, and assessing credit worthiness.

14.2 Any credit facilities for the Client may be suspended or withdrawn by Promach, in its absolute discretion, at any time without notice.

14.3 The Client agrees to pay on demand all sums owing within 14 days in connection with any credit facility provided by Promach in the event that such credit facility is suspended or withdrawn by Promach.

14.4 The Client must notify Promach of any proposed changes in the ownership, control or directorship of the Client, no later than 14 days prior to the proposed change. If there is a change, Promach in its discretion deems to be material, Promach may suspend or withdraw all credit facilities and/or require the Client to submit a new application for credit.

 

15 Default in Payment

15.1 If any moneys demanded by a notice from Promach to the Client are not paid within the time stipulated in the tax invoice or notice, those moneys will then upon such default become a charge over the Site and any other real property the Client and/or Client Representative may own from time to time until payment is made in full to Promach.

15.2 Promach will not be entitled to caveat the Site or such other real property owned by the Client and/or Client Representative to secure payment of the moneys due under the charge granted but may apply to register a mortgage over any land owned by the Client and/or Client Representative to secure the charge and the Client and Client Representative (as the case may be) must consent and not object if the debt is due and outstanding even pending any dispute between the parties.

15.3 All costs incurred by Promach in collecting any moneys demanded in the notice issued pursuant to clause 15 including stamp duty and all legal costs of any applications and recovery costs on a solicitor client basis must be paid by the Client and the Client Representative to Promach.

 

16 Risk

16.1 Unless otherwise agreed in writing by Promach, all risk in the Goods shall pass to the Client on despatch.

16.2 On and from despatch, the Client is responsible for any deterioration, loss or damage to the Goods and for insuring the Goods at the Client’s own expense against all risks (including risks in transit).

16.3 The Goods may come with Consumer Guarantees that cannot be excluded under Australian Consumer Law.

16.4 If any Goods ordered by the Client arrives damaged or is not of acceptable quality on collection, the Client may have:

16.4.1 rights under the Refund, Returns and Repair Policy;

16.4.2 legal rights and remedies under Australian Consumer Law and other rights under other consumer laws applying in each Australian State and Territory; and/or

16.4.3 to have the Goods repaired or replaced or to receive a refund of the price paid by the Client for the Goods.

16.5 Promach may repair, replace or refund faulty or damaged Goods in accordance with this clause 16. If the Order arrives damaged, please contact the Customer Support Team.

16.6 If Promach becomes aware of any defect, fault or other condition, actual or potential or threatens, in any Goods of a nature or extent that the Goods should not be used or offered for sale (Threat), then Promach will (to the extent that it considered appropriate) notify the Client. The Client must co-operate to the fullest extent possible with any directions from Promach to dimmish any risk from the Threat. The Client waivers any claim it may have in connection with any decision made by Promach to undertake a recall or withdrawal of the Goods.

 

17 Title

17.1

Title and property in all Goods supplied or delivered by Promach to the Client and in any proceeds or Commingled Property derived from the Goods (together, the Goods) will remain the absolute property of Promach until all amounts owing by the Client to Promach on any account whatsoever (including the Price for the Goods) (Amounts Owing) have been paid (meaning receipt of cash or cleared funds by Promach in full satisfaction of the Amounts Owing (Paid)).

17.2 Until the Amounts Owing have been Paid, the Client:

17.2.1 holds the Goods as bailee or as trustee and agent (as the case may be) for Promach;

17.2.2 must ensure the Goods are insured and stored or identified so that they are readily distinguishable from other goods held by the Client or other persons; and

17.2.3must not alter, remove or tamper with any marks or numbers on the Goods supplied to the Client by Promach.

17.3 Until the Amounts Owing have been Paid, the Client may, subject to the prior written consent of Promach, move, sell and otherwise use the Goods in the ordinary course of its business, subject to the following:

17.3.1 the Client must hold the proceeds it receives from any sale of the Goods as trustee and agent for Promach and must pay those proceeds to Promach immediately on demand; and

17.3.2 if the Goods become part of a product or mass through manufacturing, processing, assembly or becoming commingled, Promach’s security interest continues in that product or mass (Commingled Property) to the extent permitted by law.

17.4 Until title to the Goods pass to the Client under this Agreement, if an event of default described in clause 12.9 occurs (without limiting the Cllent’s rights under clause 12.9:

17.4.1 upon demand by Promach, the Client must return to Promach the Goods within 3 days;

17.4.2 at Promach’s option, Promach may enter the premises at which those Goods are stored and seize possession of the Goods; and

17.4.3 Promach may retain, sell or otherwise dispose of such Goods and apply the proceeds to repay any amounts owing to Promach.

17.5 The Client must not assign or grant a security interest under the Personal Property Securities Act 2009 (Cth) (PPSA) or otherwise, in respect of any amounts owed to it in relation to the Goods without Promach’s prior written consent.

17.6 Without limiting the meaning of Amounts Owing, if the Client makes a payment to Promach at any time whether in connection with the supply of Goods or otherwise, Promach may, apply that payment as it sees fit.

17.7 If any payment the Client makes is voided or conceded to be void or is voidable at Promach’s election, then that payment does not discharge the Client’s debt to Promach and Promach retains ownership to the Goods.

17.8 Promach retains the right of possession of any pallets used for delivery of the Goods, and the Client agrees to indemnify the Supplier in relation to the hire and replacement costs of any pallets not returned in good order and condition to Promach within 30 days of delivery of the Goods, unless otherwise agreed in writing by Promach.

 

18 Order Acceptance

18.1 The Client is responsible for inspecting the Goods on delivery and must notify Promach in writing within 24 hours of receipt of the Goods if the Goods delivered does not conform with the type and quantity of Goods ordered.

18.2 The Client will be deemed to have accepted the Goods delivered unless Promach receives a written notice of rejection within the time period set out in clause 18.1.

18.3 Promach shall replace any Goods that does not conform with the type and quantity of Goods ordered by the Client at Promach’s cost.

 

19 Personal Property Securities Act

19.1 In this clause 19, the following words have the respective meanings given to them in the Personal Property Securities Act 2009 (Cth) (PPSA): account, ADI account, commingled, control, proceeds, purchase money security interest, register, registration, security interest and verification statement.

19.2 The Client irrevocably consents to Promach effecting a registration on the PPS register (in any manner Promach considers appropriate) in relation to any security interest contemplated by this Agreement and the Client agrees to do any act, matter or thing (including obtain consents, execute and produce documents, procure documents to be complete and executed and supply information) which is reasonably required by Promach to ensure that the security interest is effective or to exercise any righty or power in connection with the security interest. The Client waives the right to receive notice of a verification statement in relation to any registration on the register.

19.3 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a Security Interest arising in connection with this Agreement, the Client agrees the following provisions of the PPSA will not apply to the enforcement of this Agreement: section 95 (notice of removal of accession), to the extent that it requires Promach to give a notice to the Client; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires Promach to give a notice to the Client; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).

 

20 Confidentiality

20.1 Except as permitted by this Agreement, a party must not, and must ensure that their Associates do not:

20.1.1 disclose to any person any Confidential Information of any other party;

20.1.2 use or attempt to use the Confidential Information of any other party for its own benefit or the benefit of any other person.

20.2 A party must take all reasonable steps to maintain the confidentiality of, and prevent unauthorised use of, the Confidential Information of any other party.

20.3 If a party becomes aware of unauthorised use of Confidential Information of any other party it must notify the other party immediately and provide reasonable assistance to the other party to protect its confidential information.

20.4 Each party’s obligations under this clause continue until:

20.4.1 the party who owns the Confidential Information ceases to treat the information as confidential; or

20.4.2 the party is required to disclose the information by law, in which case it may only disclose it to the extent required by law and must notify the party who owns the confidential information as soon as possible when it becomes aware of the obligation to disclose.

 

21 Privacy and Personal Information

21.1 The privacy of personal information is important to Promach.

21.2 By placing the Order or otherwise contacting Promach, the Client agrees that: Promach may store, process, use and disclose data collected from the Order for the purposes of processing and fulfilling the Order; and the Client data will be handled in accordance with the Privacy Policy.

21.3 The Privacy Policy available on the Website explains how personal information is collected and managed in accordance with the Australian Privacy Principles in the Privacy Act 1988 (Cth).

21.4 If Promach merges, sells or otherwise change control of its business or the Website to a third-party, Promach reserves the right, without giving notice or seeking consent, to transfer or assign the personal information, content and rights that Promach has collected from the Client and any agreements it has made with the Client.

 

22 Termination

22.1 This Agreement may be terminated:

22.1.1 if a party is in default of its obligations under this Agreement and does not remedy that default within 7 days of receipt of written notice from the other party requiring it to do so, the other party may terminate the Agreement and neither party shall have any further claims against the other except for those which have arisen prior to termination;

22.1.2 by mutual agreement of the parties;

22.1.3 by Promach without notice where:

(a) the Client breaches clause 7, 10, 11, 12, 13, 14,15, 17, 20, 25, 27, 28, 30 or 32;

(b) the Client becomes an externally administered body (within the meaning of the Corporations Act 2001 (Cth)) or a controller (also within the meaning of that Act) is in possession or has control of any of the Client’s property;

(c) the Client ceases to carry on the Client’s business or becomes insolvent (within the meaning of the Corporations Act 2001 (Cth)); or

(d) the Client engages in dishonesty as determined by Promach in its absolute discretion.

 

23 Accrued Rights & Consequences of Termination

23.1 Except to the extent specifically noted in this Agreement, termination under clause 22 does not affect any accrued rights or remedies of either party.

23.2 If this Agreement is terminated for any reason the Client must make payment immediately to Promach for any and all amounts owing to Promach and satisfy the Client’s obligations under clause 17.4, as applicable.

 

24 Obligations after Termination

24.1 The following clauses apply and will survive termination (for whatever reason) of this Agreement:

24.1.1 clause 15 (Default in Payment);

24.1.2 clause 16 (Risk);

24.1.3 clause 17 (Title);

24.1.4 clause 19 (Personal Property Securities Act);

24.1.5 clause 20 (Confidentiality);

24.1.6 clause 23 (Accrued Rights and Consequences of Termination);

24.1.7 clause 25 (Restricted Activities);

24.1.8 clause 27 (Limitation of Liability);

24.1.9 clause 28 (Indemnity);

24.1.10 clause 30 (Intellectual Property);

24.1.11 clause 31 (Disclosure);

24.1.12 clause 32 (Guarantee); and

24.1.13 any other clauses that make provision for continued operation.

 

25 Restricted Activities

25.1 The Client will not, directly or indirectly:

25.1.1 have close contact with, solicit, interfere in Promach’s relationship with, employ, engage or endeavour to entice away from Promach customers, clients, directors, employees, contractors, consultants, agents, representatives, associates, advisers and suppliers of Promach; or

25.1.2 establish, carry on, be engaged in, be concerned with, or otherwise engage in a business that competes with, or is of a similar nature to, Promach; or

25.1.3 counsel or induce any other person to perform any of the acts specified in clause 25.1.1 and 25.1.2.

25.2 The Client acknowledges that the restrictions and prohibitions contained in this clause 25 are reasonable having regard to the business and financial interests of Promach and the nature of the provision of the supply of Goods under this Agreement and are given without any coercion or pressure.

25.3 The Client acknowledges that if it breaches any of the obligations under this clause 25, in addition and without prejudice to any other remedy which Promach may have, all amounts owing under this Agreement are an actionable debt owed by the Client to Promach and that Promach is entitled to seek and obtain interlocutory and permanent injunctive relief in any court of competent jurisdiction.

 

26 GST

26.1 All consideration provided under this Agreement is exclusive of GST, unless it is expressed to be GST-inclusive.

26.2 Where a party (Supplier) makes a taxable supply to another party (Recipient) under or in connection with this Agreement, the Recipient must pay to the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressed to include GST). The additional amount must be paid by the Recipient at the later of the following:

26.2.1 the date when any consideration for the taxable supply is first paid or provided;

26.2.2 the date when the Supplier issues a tax invoice to the Recipient.

26.3 If, under or in connection with this Agreement, the Supplier has an adjustment for a supply under the GST Act which varies the amount of GST payable by the Supplier, the Supplier will adjust the amount payable by the Recipient to take account of the varied GST amount. The Supplier must issue an adjustment note to the Recipient within 28 days of becoming aware of the adjustment.

26.4 If a party is entitled to be reimbursed or indemnified under this Agreement, the amount to be reimbursed or indemnified is reduced by the amount of GST for which there is an entitlement to claim an input tax credit on an acquisition associated with the reimbursement or indemnity. The reduction is to be made before any increase under clause 26.2.2 above. An entity is assumed to be entitled to a full input tax credit on an acquisition associated with the reimbursement or indemnity unless it demonstrates otherwise before the date the reimbursement or indemnity is made.

26.5 Any reference in this Agreement to sales, revenue, income, value or similar amount (Revenue) is a reference to that Revenue exclusive of GST (unless that Revenue is expressed to be GST-inclusive).

26.6 Any reference in this Agreement to cost, expense, liability or similar amount (Expense) is a reference to that Expense exclusive of GST (unless that Expense is expressed to be GST-inclusive).

26.7 This clause will not merge on completion and will survive the termination of this Agreement by any party.

26.8 Terms used in this clause that are not otherwise defined in this Agreement have the meanings given to them in the GST Act.

 

27 Liability

27.1 To the maximum extent permitted by law:

27.1.1 any guarantee, condition or warranty (including, without limitation, any implied guarantee, condition or warranty of merchantability, satisfactory quality or fitness for a particular purpose) which would otherwise apply to, or be implied in, these Trading Terms is hereby excluded; and

27.1.2 Promach excludes all liability in respect of the Goods.

27.2 To the extent that:

27.2.1 this clause is void as a result of section 64 to the Australian Consumer Law (or equivalent state or territory legislation); or

27.2.2 any law provides for, or implies in this agreement, any guarantee, condition or warranty; or

27.2.3 any law voids or prohibits a provision in a contract excluding or modifying the application of, or exercise of, or liability under, a guarantee, condition or warranty; or

27.2.4 Promach is not otherwise permitted by law to exclude liability under law, then to the maximum extent permitted by law, Promach’s liability for any breach of such guarantee, condition or warranty, or otherwise, shall be limited, at Promach’s option, to one or more of the following:

27.2.5 the replacement of Goods delivered or the supply of equivalent Goods at no additional charge;

27.2.6 the repair by Promach of such Goods at no additional charge;

27.2.7 a refund of the cost of replacing such Goods or acquiring equivalent Goods, or the cost of having such Goods repaired; and

27.2.8 the re-supply of any services provided by Promach or a refund of the cost of having such services supplied again.

27.3 Other than as specifically stated in this Agreement and to the maximum extent permitted by law, Promach is not liable for and the Client hereby fully releases and indemnifies Promach from any claim, action, demand, and all losses (including without limitation indirect and consequential losses), costs, liabilities and expenses (including legal costs on a full indemnity basis) (Claims), for fines, penalties, taxes (except GST) and arising directly or indirectly out of or in connection with the Client’s use or application of the Goods, including without limitation the installation, use, operation and maintenance of the Goods other than in accordance with Promach’s instructions or recommendations (except to the extent that Promach’s negligence, fraud or willful misconduct caused or contributed to such Claims).

 

28 Indemnity

28.1 The Client must indemnify and keep indemnified Promach from and against any losses, costs, damages and expenses (including for example, a deductible under an insurance policy) arising in connection with:

28.1.1 the loss of or any damage to, any property of any person; and

28.1.2 the death of, or injury to any person caused or contributed to by Promach, its subcontractors, employees or agents.

28.2 Without limiting the generality of clause 28.1, Promach must indemnify the Client and keep indemnified the Client, from and against any claims, actions, proceedings, losses or costs, damages and expenses arising in connection with, or brought by, any person employed or engaged by Promach, any subcontractor and any officer, person employed or engaged by a subcontractor in connection with this Agreement applying until the end of this Agreement.

 

29 Disputes

29.1 The parties will use reasonable commercial endeavours to resolve disputes between them quickly and, where possible, without resort to legal proceedings.

29.2 If despite the use of reasonable endeavours, the parties cannot reach agreement on any aspect of their respective rights and obligations under this Agreement, either party may notify the other of the existence of a dispute, giving details of the dispute including references to and copies of any relevant documentation and correspondence.

29.3 Within 10 Business Days of receipt of a notice of dispute, each party must prepare a written statement concerning the disagreement (Dispute Summary) and provide a copy of their Dispute Summary to the other.

29.4 If the parties are unable to reach agreement regarding the dispute within 5 Business Days of the exchange of the Dispute Summaries, the parties must provide both Dispute Summaries together with a report on their efforts to resolve the dispute to an independent mediator selected by the President of the Law Society of Victoria who must use their reasonable attempts to resolve the dispute.

 

29.5 The parties maybe assisted in the dispute resolution process by external parties (including of a financial, technical or legal nature).

29.6 Nothing in this clause prevents a party from applying to a court for urgent interlocutory relief or an interim remedy.

29.7 To the greatest extent possible, having regard to the nature of the dispute, the parties must continue to perform their respective obligations under this Agreement, despite the existence of the dispute.

 

30 Intellectual Property

30.1 The Client acknowledges and agrees that all intellectual property rights in the Goods are the property of Promach

30.2 The Client acknowledges and agrees that:

30.2.1 all right, title and interest (including any Intellectual Property Rights) in and to any Promach Materials which are created or brought into existence in connection with the obligations of Promach under this Agreement, vest in Promach on creation.

30.2.2 All right, title and interest (including any Intellectual Property Rights) in and to any adaptation of any Promach Materials, and any reproduction of any Promach Materials whether made by the Client or Promach in connection with the obligations under this Agreement, vest in Promach on creation.

30.3 The Client must not and must not cause, permit or assist any other person directly or indirectly to:

30.3.1 copy any intellectual property rights in the Goods or record or replicate it by any other means;

30.3.2 make copies of or replicate the Goods;

30.3.3 translate, reverse engineer, decompile or disassemble the Goods; or

30.3.4 copy, publish, disclose or distribute any documentation associated with the Goods (including, without limitation, Promach Materials).

 

31 Disclosure

31.1 Promach notifies the Client that Promach and/or Promach’s Related Body Corporates or Associates may receive a rebate, commission or benefit (financial or otherwise) from a third party in connection with this Agreement.

31.2 The Client acknowledges and accepts:

31.2.1 a rebate, commission or benefit (financial or otherwise) is or may be payable to Promach, Promach’s Related Body Corporates or Associates from a third party in respect of a sale, service, dealing, introduction or referral and the nature of any rebate, commission or benefit (financial or otherwise); and

31.2.2 the Client may refuse any introduction or referral, and the Client hereby gives informed consent to any rebate, commission or benefit (financial or otherwise) received or which may be received by Promach, Promach’s Related Body Corporates or Associates from a third party; and

31.2.3 the Client is hereby advised of any payments, rebate, commission or benefit (financial or otherwise) to Promach, Promach’s Related Body Corporates or Associates from a third party.

31.3 For the avoidance of doubt, the Client hereby consents to, and waives, and releases any claims whatsoever for any conflict of interest in the connection with Promach’s obligations under this Agreement.

 

32 Guarantee

32.1 If the Client is a company, association or other nonnatural person, the parties agree that the directors, trustees, board members or other persons who are authorised to make the order hereby guarantee the obligations of the Client as Guarantors under this Agreement.

32.2 In consideration Promach entering into this Agreement and providing the Goods and any services, the Guarantors jointly and severally guarantee and indemnify Promach as follows:

32.2.1 the Guarantors must pay to Promach on demand all amounts payable under this Agreement which are not paid by the Client within the time prescribed in this Agreement for payment whether or not demand for those amounts have been made by Promach on the Client;

32.2.2 the guarantee in clause 32.2.1 extends to payment of all monies and the observance and performance of all the Client’s obligations as specified in this Agreement;

32.2.3 the guarantee is for the period from that the Client instructs Promach of an Order and any period in which Promach is involved in the Order as a result of Client instructions;

32.2.4 the guarantee is for the benefit of Promach;

32.2.5 the guarantee extends to claims by Promach for damages for breach of any terms of this Agreement and to Promach’s reasonable legal and other expenses of seeking to enforce those obligations against the Client;

32.2.6 Promach will be entitled to require the Guarantors under this guarantee to pay to Promach any and all outstanding monies and other amounts and to compensate Promach for any loss or damage under this Agreement without Promach being required to institute proceedings against the Client in respect of such claims or breaches; and

32.2.7 Promach’s rights against the Guarantor are not affected by any of the following:

32.2.7.1 death, bankruptcy or winding up of the Client or the Guarantors or any of them; and

32.2.7.2 the Client’s liability under the Agreement or the Agreement being or becoming invalid, illegal or unencodable through any act omission or legislation.

 

33 Notices and Consents

33.1 Neither party has authority to bind the other without that other party’s express written consent.

33.2 All notices and consents must be in writing signed by the sender, marked to the attention of the recipient’s contact person and sent to the addresses or fax numbers for notices specified in the Order or as later notified.

33.3 Notices may be sent by email. Communications sent by email need not be marked for attention. However, the email must state the first and last name of the sender. Communications sent by email are taken to be signed by the named sender.

33.4 Notices are deemed to be served:

33.4.1 if sent by fax or email, upon receipt by the sender of a successful transmission report;

33.4.2 if sent domestically by post, on the third business day after posting; or

33.4.3 if sent internationally by post, on the sixth business day after posting.

 

34 Force Majure

34.1 If Promach is unable at any time to perform any of its obligations whether wholly or partly by reason of any cause beyond its control (including without limitation, acts of God, inclement weather, strikes, lockouts, fires, riots, government order, infectious disease outbreaks (including but not limited to COVID-19), default of any subcontractor, accident to plant or machinery, shortage of materials or labour, civil commotion or unrest, interference by civil or military authorities or act of war) Promach may give written notice to that effect to the Client, giving full particulars of such force majeure in which case the obligations of Promach under this Agreement shall, to the extent that they are affected by the force majeure, be suspended during the term of the force majeure. Promach shall not be liable for any loss or damage suffered by the Client as a result of any delays caused by such force majeure events.

 

35 Compliance with the law applicable to Goods

35.1 The Client warrants that in accepting, storing, handling and using the Goods, the Client must comply with all the relevant guidelines, standards, laws and regulations applicable to the storage and use of the Goods (including without limitation, environmental laws and regulations) and does, or on acquisition of the Goods, will, possess and comply with all necessary and appropriate safety precautions in relation to the Goods.

 

36 General

36.1 (Independent Legal Advice) Each party and any Guarantor acknowledge that prior to entering into this Agreement they have had the opportunity to obtain independent legal advice in relation to this Agreement.

36.2 (Special Conditions) If there are Special Conditions, those Special Conditions supersede and prevail over terms and conditions in these General Terms and Conditions and each Schedule, to the extent of any inconsistency.

36.3 (Entire Agreement) This Agreement constitutes the entire agreement between the parties about its subject matter and supersedes any previous understanding, agreement, representation or warranty relating to this subject matter and supersede all prior negotiations, representations, proposals, undertakings and agreements, whether written or oral, relating to the subject matter of the Order.

36.4 (Severability) If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause or part of that clause is regarded as having been deleted from this Agreement and this Agreement otherwise remains in full force and effect.

36.5 (Costs) Each party will bear its own legal and other costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement.

36.6 (Assignment) Promach may, at any time, assign any of the rights under, or novate this Agreement, in its absolute discretion. If Promach novates this Agreement, Promach will have no liability in respect of this Agreement, from the date of novation. The Client must not assign any of its rights under this Agreement without the prior written consent of Promach which will not be unreasonably withheld.

36.7 (Variation) Subject to the terms of this Agreement, a variation of this Agreement will only be valid if evidenced in writing and signed by both the Client and Promach.

36.8 (Waiver) A party’s delay or failure to enforce a provision of this Agreement is not a waiver of that right. A waiver must be in writing and served in accordance with clause 33.

36.9 (Further Acts) Each party will do all things necessary to give full effect to this Agreement and the transactions contemplated by it.

36.10 (Time is of the Essence) Time is of the essence as regards to any date or period referred to in this Agreement.

36.11 (Counterparts) This Agreement may be executed in one or more counterparts, which taken together constitute one agreement. If so, the signed copies are treated as making up one document and the date on which the last counterpart was executed will be the date of the Agreement. The signature of a party via a scanned or digitised image of a handwritten signature (e.g. scan in PDF format) or an electronic signature (e.g. via DocuSign or HelloSign), will have the same force and effect as an original handwritten signature for the purposes of validity, enforceability, and admissibility. Delivery of the fully executed copy via e-mail or via an electronic signature system shall have the same force and effect as delivery of an original hard copy.

36.12 (Governing Law) This Agreement is governed and interpreted by the laws of Victoria. The courts of Victoria have jurisdiction to determine any proceedings in relation to this Agreement.

 

37 Definitions & Interpretation

37.1 Headings are for ease of reference only and do not affect interpretation.

37.2 In this Agreement, unless the context otherwise requires:

37.2.1 the singular includes the plural and vice versa, and a gender includes other genders;

37.2.2 another grammatical form of a defined word or expression has a corresponding meaning;

37.2.3 a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference to this Agreement includes any schedule or annexure;

37.2.4 a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

37.2.5 a reference to A$, $A, dollar or $ is to Australian currency;

37.2.6 a reference to time is to Melbourne, Australia time;

37.2.7 a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;

37.2.8 a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

37.2.9 a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

37.2.10 a word or expression defined in the Corporations Act 2001 (Cth) has the meaning given to it in the Corporations Act 2001 (Cth);

37.2.11 the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

37.2.12 any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

37.2.13 any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;

37.2.14 a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and

37.2.15 if a day on or by which an obligation must be performed, or an event must occur is not a Business Day, the obligation must be performed, or the event must occur on or by the next Business Day.

37.3 In this Agreement:

Agreement means these Terms and Conditions of Trade together with any schedules and each of the Refund, Return, Repair Policy; Shipping Policy; Consumer Guarantees; Privacy Policy; and Client Credit Application.

Associates mean employees, agents, officers, directors, partners, consultants, joint venturers, or subcontractors of that party.

Business Day means any day excluding public holidays.

Business Hours means the hours between 8.30am and 5.00pm on a Business Day.

Client means the person making the Order and/or buying the Goods as specified in the Order and includes any of the Client’s Related Bodies Corporates and Associates and Client Representative.

Client Representative means the person(s) identified as the Client Representative in the Order and as otherwise notified in writing by the Client to Promach from time to time.

Confidential Information means all confidential information, non-public or proprietary information regardless of how the information is stored or delivered, exchanged between the parties before, on or after the date of this Agreement relating to the business, technology, customers or other affairs of the disclosing party excluding the Excluded Information.

Excluded Information means Confidential Information which:

• is in the public domain other than by breach of this Agreement;
• the recipient can prove was already known to it at the time of disclosure by the disclosing party, unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality;
• the recipient acquires from a source other than the disclosing party where such source is entitled to disclose it.

Goods means the goods and/or services supplied by Promach in accordance with the Order (where the context permits the terms ‘goods’ and ‘services’ shall be interchangeable for the other).

Financial Year means the 12 months from 1 July to 30 June.

GST means the goods and services tax as imposed by the GST Act.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 and all associated legislation.

Intellectual Property Rights means:

• inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of goods, equipment, products, technology, processes, methods or techniques;
• copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
• Confidential Information and trade secrets;
• trade and service marks (whether registered or unregistered) business names, trade names, logos and get-up; and
• any application or right to apply for registration of any of the rights referred to above whether arising before or after the date of this Agreement.

Insolvency Event means the Client suffers or, in the reasonable opinion of Promach, is in jeopardy of becoming subject to any form of insolvency administration or bankruptcy, or ceases or threatens to cease to carry on business.

Order means a verbal or written request for the supply of Goods placed by the Client and accepted by Promach, or a quotation given by Promach and accepted by the Client at the price advertised and/or quoted in accordance with the terms of the Agreement by: the Client confirming the order details (verbally or in writing) or executing an order form or quotation for the Goods with Promach; the Client making payment in part or in full (plus any applicable shipping and delivery charges) or as otherwise noted on the order or quotation; and the acceptance of that order by Promach.

PPSA means the Personal Property Securities Act 2009 (Cth).

Price means the total monetary amount payable by the Client to Promach for the supply of Goods, as specified in the Order (in the relevant currency), including any modifications to the Price as provided under the terms of the Agreement. This Price is exclusive of GST, delivery, handling charges, and any other additional charges that may be applicable under the Agreement.

Promach means Promach Precision Engineering Pty Ltd (ACN 686 809 450) of 8A Alice Lane, Newtown NSW 2042, Australia.

Promach Materials means any and all operating instructions, manuals, documentation or other material provided by Promach to the Client in connection with the performance of its obligations under this Agreement, whether such material is stored in hardcopy of electronic form.

Related Body Corporate has the meaning given under the Corporations Act 2001 (Cth).

Site means the address and location of the proposed or actual installation of the Goods by the Client the subject of the Order under the Agreement.

Special Conditions means terms set out as Special Conditions in the Order.