TERMS AND CONDITIONS OF CONTRACT
definitions shall be used for the purpose of interpreting this Contract, and
shall apply throughout this Contract.
shall mean these terms and conditions as expressed herein and are referred to as
Conditions of Contract for Services.
shall mean McKechnie Iron Foundry Pty Ltd (ABN 20 007 541 317) having its
registered office at 585 Grand Junction Road, Gepps Cross, South
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).
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:
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
“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
shall mean the person engaging the Contractor to perform the Services.
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
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.
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).
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
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.
Definitions on Order
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
Use of Goods
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.
Terms of Payment
|6.1||Unless it is otherwise specifically agreed in writing by the Contractor the purchaser will:|
Property and Risk
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.
Indemnity and Insurance
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.
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
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.
maintain full and sufficient insurance cover with a first class insurance
company in respect of its liabilities under Sub-Clause 8.1.
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.
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.
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:|
Customer Supplied Items
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
these items against all risk whilst in the Contractors custody.
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
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.
Title and Rights of Use
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.
Limitation of Contractor’s Liability
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.
Purchaser and the Contractor shall take all reasonable steps to mitigate any
loss resulting from any breach of the Contract by the other Party.
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.
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
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.
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
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.