Terms and Conditions

 

 

1. The Contract

1. All machinery, parts, service kits, materials, consumables and other goods, whether new, used, remanufactured or rebuilt (Goods), and all labour and services (Services), supplied to you (Customer) by Rexwells Corporation Pty Ltd trading as Complete Field Maintenance (CFM) are supplied on these terms and conditions (Terms) and as set out in clause 1.5 below.
2. Any terms offered or put forward by the Customer, including those contained or incorporated into any purchase order or other document submitted by the Customer, are rejected by CFM.
3. The Customer’s order for Goods or Services (Order) is deemed to be an offer to purchase the Goods or Services on these Terms.  CFM may accept an Order by:

1. notifying the Customer, through any means appropriate in the circumstances, that the Order has been accepted; or
2. by effecting delivery of the Goods or Services in accordance with clause 4.

4. Until CFM has accepted an Order, any quote, scope of works, price estimate, price list, or similar document (Quote) is indicative only and may be withdrawn at any time by CFM.
5. Upon CFM accepting an Order, a contract for the supply of the Goods and/or Services comes into existence between CFM and the Customer (Contract) which contract incorporates the following documents (which, in the event of any inconsistency, prevail in the order listed below):

1. the relevant Quote;
2. these Terms; and
3. the Order placed by the Customer (excluding any attached or incorporated terms and conditions).

6. Variations or additions to the Contract are only effective if agreed in writing by CFM and the Customer.

2. Prices

1. All rates and prices quoted, stated or advised, by CFM, exclude GST, duties, levies, tariffs, delivery costs, export or special packing required.

3. Payment

1. Any deposit specified in a Quote or advised by CFM to the Customer prior to CFM accepting an Order (Deposit), is non-refundable and must be paid by the Customer to CFM in full upon acceptance of the Order. CFM:

1. will not incur any liability or obligation to the Customer until the Deposit is cleared and available in cleared funds to CFM; and
2. may terminate the Contract if the Deposit is not paid in full within 7 days of acceptance by CFM of the Order.

2. If the Customer is approved by CFM for trading on credit terms. CFM will issue an invoice to the Customer upon or following Delivery (as defined in clause 4.1).  The Customer must pay the amount stated in the invoice by the due date stated in the invoice or, if there is no due date stated in the invoice, within 21 days of the date of issue of the invoice.
3. If the Customer is not approved by CFM for trading on credit terms, CFM may issue an invoice or claim for payment to the Customer before, upon or after Delivery (as defined in clause 4).  The Customer:

1. must pay the amount stated in the invoice by the due date stated in the invoice or, if there is no due date stated in the invoice, within 7 days of the date of issue of the invoice; and
2. acknowledges that until payment of the invoice is made in full by the Customer, CFM is entitled to withhold:

1. ordering any goods or services necessary to fulfill the Contract; and/or
2. Delivery.

4. Time is of the essence in respect of payment by the Customer.  If the Customer fails to pay CFM any amount when due, the Customer must pay to CFM interest on the overdue amount at the rate of 10% per annum, calculated on a daily basis from the due date for payment until the date the overdue amount is paid in full.
5. All payments by the Customer must be made without deduction or set-off of any kind and must be made in Australian dollars by electronic funds transfer or other method approved by CFM.
6. If CFM agrees to accept payment by credit card, the Customer must pay to CFM a credit card fee of 1.5%.

4. Delivery

1. If a date or dates for delivery of Goods or completion of Services (Delivery) is specified in the Contract, CFM will use its reasonable endeavors to ensure Delivery occurs by that date or those dates.  The Customer acknowledges that any delivery date, lead time or stock availability including as indicated on CFM’s website or other document, is an estimate only and agrees that CFM will not be liable to the Customer for any loss or damage of any kind as a result of Delivery not occurring by that delivery date.
2. If there is no date or dates specified, CFM will ensure Delivery occurs within a reasonable time of acceptance of the Order (having regard to the type and availability of the Goods).
3. CFM will effect Delivery by:

1. delivering the Goods, or the customer’s property in respect of which CFM carried out Services (Customer’s Property), either by itself or a carrier engaged by CFM, to the delivery place specified in the Quote or otherwise agreed by CFM and the Customer (Delivery Place), during usual business hours; or
2. making the Goods or the Customer’s Property available for collection by the Customer, or a carrier engaged by the Customer, from CFM’s premises or other location.

4. If the Goods or the Customer’s Property is to be collected pursuant to clause 4.3(b), the Customer must do so, or procure its carrier to do so, within 48 hours of being notified by CFM that the Goods or Customer’s Property is available for collection.
5. The Customer must ensure that CFM or its carrier has safe access to the Delivery Place.
6. Delivery is taken to occur (as is applicable):

1. if the Goods or the Customer’s Property is to be delivered by CFM or a courier engaged by CFM, when the Goods or the Customer’s Property departs CFM’s premises or other place of origin; or
2. if the Goods or the Customer’s Property is to be collected by the Customer or a courier engaged by the Customer, when CFM notifies the Customer that the Goods or the Customer’s Property is available for collection.

7. The Customer must in respect of any machine, vehicle or equipment in which the Goods are to be installed or operated, provide CFM with evidence of the engine, machine or usage hours as at the date of installation. The Customer acknowledges that the failure to provide such information may void any warranty in respect of the Goods or reduce the warranty period.

5. Service Exchange Program

1. Explanation of Service Exchange Program

1. The service exchange program involves CFM supplying a Customer with a new, like new or refurbished component (SX Component) in exchange for the Customer providing to CFM a used equivalent component (Core).
2. The remainder of this clause 5 applies to the extent that the Quote specifies or indicates that Goods are supplied under the SX Program.  Without limiting how the Quote may do so, if any part number for Goods on the Quote contain the letters “SX”, the Goods are supplied under the SX Program and this clause 5 applies to that supply.

2. Delivery of Core by Customer

1. The Customer must as soon as possible following Delivery of the SX Component and in any event within 42 days thereof (Core Delivery Date), at the Customer’s own cost, deliver the Core to CFM’s premises, or other location advised by CFM.  The Core must be unencumbered and not subject to any security interests of any kind.
2. If for any reason the Customer fails to comply with clause 5.2(a), the Customer must pay to CFM, at CFM’s election:

1. a late fee of 20% per annum, calculated on a daily basis, of the purchase price payable by the Customer for the SX Component (Late Delivery Fee), calculated on a daily basis from the Core Delivery Date to the date the Customer actually delivers the Core to CFM (Actual Core Delivery Date); or
2. a non-delivery fee calculated in accordance with clause 5.3(c) (Core Non-Delivery Fee).

3. The Core Non-Delivery Fee is:

1. the relevant maximum Core charge specified in the Quote (Maximum Core Charge); or
2. if there is no relevant Maximum Core Charge, an amount determined in accordance with clause 5.3(c)(ii) (as if the Customer had returned the Core and CFM determined it was an Unrecoverable Core (as defined in clause 5.3(a)(iii)).

4. CFM may issue an invoice to the Customer for:

1. a Late Delivery Fee, at any time on or following the Actual Core Delivery Date;
2. a Core Non-Delivery Fee, at any time following the earlier of the Core Delivery Date or the date that the Customer advises CFM that the Core has been lost or for any reason will not be delivered to CFM,

upon receipt of which the Customer must pay the amount stated in the invoice within 7 days.  The amount stated in the invoice will except in the case of manifest error be conclusive evidence of that amount and is binding on the Customer.

5. Upon delivery of the Core to CFM, all right title and interest in the Core passes absolutely to CFM and CFM will be entitled to deal with the Core (including selling it) as it sees fit.
6. In addition to the delivery of the Core to CFM, the Customer must at the same time return to CFM in good condition any cover plates, blanking plates and skid frame in which the SX Component was delivered to the Customer (Skid Frame).
7. If the Customer fails to return the Skid Frame to CFM in accordance with clause 5.2(f), the Customer must pay to CFM an amount determined by CFM (acting reasonably) for the remanufacture or replacement of the Skid Frame (Skid Frame Charge).  
8. CFM may issue an invoice to the Customer for a Skid Frame Charge at any time following the earlier of the Core Delivery Date or the date that the Customer advises CFM that the Skid Frame has been lost or for any reason will not be returned to CFM.  The amount stated in the invoice will except in the case of manifest error be conclusive evidence of that amount and is binding on the Customer.

3. Assessment of Core

1. Following receipt of the Core, CFM will assess the Core’s condition to determine whether it is:

1. suitable for CFM’s standard refurbishment (Standard Refurbishment);
2. suitable for a non-standard refurbishment (Non-Standard Refurbishment), being a refurbishment of the Core which requires works that are not within the scope of a Standard Refurbishment (Out of Scope Works); or
3. not suitable for refurbishment, for example because the Core is beyond economic repair (Unrecoverable Core).

2. If CFM in its absolute discretion determines that the Core is not suitable for a Standard Refurbishment, CFM will issue to the Customer a condition report for the Core (Condition Report) which details (as is applicable):

1. the Out of Scope Works considered by CFM to be necessary for a Non-Standard Refurbishment; or
2. why the Core is an Unrecoverable Core; and

3. Upon or after the issuing of a Condition Report, CFM may issue to the Customer an invoice for a Core Charge. If the Condition Report specifies or indicates that the Core:

1. is suitable for a Non-Standard Refurbishment, the Core Charge is an amount determined by CFM (acting reasonably) for all Out of Scope Works detailed in the Condition Report;
2. is an Unrecoverable Core, the Core Charge is:

1. the actual or potential cost to CFM, as determined by CFM (acting reasonably), plus 30%, for CFM to obtain the same or equivalent product as the Unrecoverable Core, new, from the original equipment manufacturer or other supplier or manufacturer; less
2. the price paid or payable by the Customer to CFM for the relevant SX Component.

but if the Quote contains a relevant Maximum Core Charge, the Core Charge will not charge the Customer more than the relevant Maximum Core Charge.

4. Upon receipt of an invoice for a Core Charge, the Customer must pay the amount stated in the invoice within 7 days.  The amount stated in the invoice will except in the case of manifest error be conclusive evidence of the Core Charge and is binding on the Customer.

6. Risk, title and PPSR provisions

1. Risk in the Goods passes to the Customer upon Delivery.  Title to the Goods passes to the Customer upon payment by the Customer for the Goods in accordance with these Terms.
2. The Customer hereby grants CFM a security interest in:

1. all Goods supplied to the Customer; and
2. all other property of the Customer in respect of which CFM has carried out or supplied Services,

(Security Interest).

3. The Security Interest secures payment of all amounts owing by the Customer to CFM (whether arising pursuant to the Contract or some other contract or agreement between the Customer and CFM).  
4. CFM may register the Security Interest (including as a purchase monies security interest) on the Personal Property Securities Register.  CFM will on request by the Customer withdraw or discharge the Security Interest if and only if there are no unpaid amounts due to CFM.
5. The Customer waives its rights to receive a copy of the verification statement in respect of any Security Interest registered by CFM.

7. Use of Goods and Services

1. The Customer must not effect any modification or alteration to the Goods or Services, nor use the Goods or Services, other than strictly in accordance with any directions, instructions or recommendations given by CFM or the manufacturer.
2. The Customer in connection with the Goods or Services indemnifies CFM and its directors, officers, agents, employees and subcontractors against all claims, demands, losses, costs, liabilities and expenses arising directly or indirectly from:

1. injury or death of any person;
2. damage to or destruction of any property;
3. any modification, alteration or use of the Goods.

8. Warranties and limitation of liability

1. The Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law (being Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL).
2. To the extent permitted by law, CFM’s liability in relation to any warranty, guarantee or other obligation with respect to Goods or Services is limited:

1. to defects in the Goods or Services found within the relevant warranty period specified in clause 8.3, and reported to CFM within 7 days of discovery (Defect); and
2. in respect of a Defect in Goods, to, at CFM’s election, the:

1. repair of the Goods;
2. replacement of the Goods or supply of equivalent Goods;
3. payment of the cost of repairing or replacing the Goods or of acquiring equivalent Goods;

3. in respect of a Defect in Services, to, at CFM’s election the:

1. carrying out those or equivalent Services again;
2. the payment of cost of having those or equivalent Services carried out again;

4. in any event, to a maximum amount equal to the amount paid by the Customer to CFM for the Goods or Services.

3. For the purposes of clause 8.2, the warranty period for:

1. new parts (such as pins, bushes, valves, track rollers) expires on 12 months from, or 2,000 hours of use following, Delivery (whichever occurs first);
2. new components (such as hydraulic cylinders), SX Components or rebuilt components, expires on 6 months from, or 2,000 hours of use following, Delivery (whichever occurs first);
3. Services (being a workmanship warranty), expires 3 months from Delivery;
4. Goods that come with a manufacturer’s warranty, the same as the relevant manufacturer’s warranty (notwithstanding (a) and (b)) above.

subject to clause 8.4.

4. Notwithstanding clause 8.3, if the Customer fails to comply with clause 4.7, the warranty period in respect of the Goods is 3 months.
5. If the Customer wishes to make a claim under warranty, the Customer must:

1. complete a warranty claim form provided by CFM;
2. promptly provide to CFM any documents, information or material samples which CFM requests in order to assess the warranty claim (including service and repair logs, recorded engine hours, fault logs and oil samples), ; and
3. if CFM requests, at the Customer’s own cost, return the Goods to CFM’s premises, or permit CFM access to where the Goods are located, to enable CFM to inspect the Goods.

6. If CFM accepts a warranty claim and elects to repair, CFM may, at CFM’s election, repair the Goods at CFM’s premises or other location (depending on what CFM considers is the appropriate environment for the repair).  The Customer must pay to CFM any costs incurred by CFM for the removal and reinstall of the Goods and any freight, crane hire, travel, accommodation and site inductions.  If there are any delays in carrying out the repairs beyond the control of CFM (for example, delays due to weather or site emergency) and CFM is required to spend more time on site for the repair, the Customer must pay to CFM additional charges calculated by CFM by reference to any hourly rates previously notified by CFM..
7. Without limiting the generality of clause 8.2, CFM will not be liable to the Customer under warranty or otherwise:

1. in respect of Goods:

1. which have been misused, damaged, altered or modified by the Customer or not operated within the Goods’ design parameters;
2. comprising of consumables (including deck seals, flushing seals and head slides);
3. which are supplied by CFM as second hand goods;
4. where any anti-tamper sealant or device has been broken, there is any evidence of tampering, or where any identification plates or tags have been removed or modified;
5. which have not been maintained or serviced in accordance with any recommendations by CFM or the manufacturer;
6. which for any reason beyond CFM’s control CFM has been unable to inspect;
7. supplied overseas or taken overseas by the Customer;
8. which the Customer has attempted to repair prior to notifying CFM about the Defect or allowing CFM to inspect those Goods;

2. for any Services comprising labour hire;
3. in respect of any goods or materials supplied by the Customer to CFM (even if installed by CFM);
4. if the Customer fails to provide anything required under clause 4.7 or 8.4;
5. for any consequential loss, liquidated damages or delay penalties.

8. The Customer acknowledges and agrees that in entering into the Contract, the Customer has not relied on any representation made by CFM or its directors or employees.

9. Returns

1. CFM has no obligation to accept a return of any Goods by the Customer (Return) and any request by the Customer for a Return will be at the absolute discretion of CFM.  For the avoidance of doubt, to the extent that any Goods or Services are defective, the Customer’s rights are dealt with in clause 8 above.
2. Any request by the Customer for a Return must be made by the Customer within 14 days of Delivery.  If CFM agrees to accepts a Return, the Customer must at its cost deliver the Goods to CFM in an unused condition and in its original packaging. CFM may refuse to accept the Return if CFM is not satisfied in any respect with the condition of the returned Goods.
3. Subject to CFM being satisfied in its absolute discretion in respect of the returned Goods, CFM will within a reasonable time following the return of the Goods, credit to the Customer’s account, or refund to the Customer, the amount paid by the Customer to CFM for the Goods (excluding any additional or incidental costs such a delivery or other third-party costs) less a a restocking fee advised by CFM at the time of the Customer’s request for the Return and less any cost incurred by CFM in preparing the returned Goods to be suitable for resale (for example, cleaning, re-blasting or repainting).

10. Insurance

1. CFM will at all times hold a policy of public liability insurance on such terms that CFM considers appropriate having regard to the nature of CFM’s business.
2. CFM will if requested to do so by the Customer, provide the Customer with a copy of a certificate of currency for CFM’s insurance policy.

11. Intellectual Property

1. CFM and the Customer each retain their own intellectual property which was in existence prior to the formation of the Contract.
2. Unless otherwise agreed in writing, any intellectual property created or arising from or relating to the supply of the Goods or Services is owned by CFM.

12. Confidential Information

1. For the purposes of this clause 12, Confidential Information means any information which is not already in the public domain and is:

1. contained in, or disclosed in connection with, the Quote (including the purchase price for Goods or Services);
2. is prepared or produced under or in connection with the Contract at any time;
3. relates to any transactions contemplated by the Contract.

2. The Customer must keep all Confidential Information strictly confidential and not deal with it in any way that might prejudice its confidentiality.
3. The Customer’s obligations in relation to the Confidential Information survive termination of the Contract.
4. The Customer’s obligations in this clause 12 do not apply to Confidential Information that:

1. is required to be disclosed in order for the Customer to comply with the Customer’s obligations under the Contract;
2. is authorised in writing to be disclosed by CFM; or
3. must be disclosed by law.

13. General

1. Dispute

1. CFM and the Customer must work together to quickly resolve any disputes or differences that may arise between them. If any dispute, other than with respect to non payment by the Customer cannot be resolved within 14 days after the dispute first arose, the dispute may be referred to a mediator agreed by CFM and the Customer or, if they cannot agree, then as appointed by the President of the Law Society of Western Australia. The mediator is to decide the time, place and rules for mediation. The cost of the mediation is to be shared equally by the Parties.
2. Except for a dispute in relation to non payment by the Customer, neither CFM nor the Customer may start Court proceedings in relation to a dispute between them unless they have first complied with clause 13.1(a).

2. Assignment

Neither party may assign, transfer, sublicence or otherwise deal with any of their rights or obligations under the Contract without the prior written agreement of the other party.

3. Waiver

Failure to exercise or delay in exercising any right or remedy under the Contract by CFM does not operate as a waiver of that right or remedy.

4. Further assurance

The parties must execute all documents and do all acts, matters and things necessary or desirable to implement and give full effect to the provisions and purpose of the Contract.

5. Severance

If any part of the Contract is, or becomes, void or unenforceable that part is or will be severed from the Contract to the intent that all parts that are not, or do not become, void or unenforceable remain in full force and effect and are unaffected by that severance.

6. Governing Law and Jurisdiction

The Contract is to be governed by and to be interpreted in accordance with the laws of Western Australia and where applicable the laws of the Commonwealth of Australia and all parties submit to the jurisdiction of the Courts of Western Australia.