Terms and Conditions

Definitions and interpretation

In these General Terms and Conditions, the following words and expressions have the following meaning:

1.1 Definitions

Effective Date means the Invoice Issue Date as affixed per the Purchase Order Invoice attached to this Purchase Order agreement.

Confidential Information means information that is by its nature confidential but does not include:

(a) information already known to the receiving party at the time of disclosure by the other party; or

(b) information in the public domain other than as a result of disclosure by a party in breach of its obligations

of confidentiality under this agreement.

Configuration means the grouping of components as specified in the Purchase Order Invoice.

Customer means the Customer as specified in the Purchase Order Invoice attached to this Agreement.

Delivery means the delivery by the Supplier of the Equipment at the Delivery Site.

Delivery Date means the date or period for Delivery of the Equipment as may be specified in the Purchase Order Invoice or agreed between the Customer and the Supplier.

Delivery Site means the site for the delivery of the Equipment on the Delivery Date as may be specified in the Purchase Order Invoice.

Equipment means all goods, vehicle workshop equipment, materials, articles or any other property or parts

provided or to be provided to the Customer by the Supplier under this Purchase Order as specified or required in

this Purchase Order.

GST means:

(a) the same as in the GST Law;

(b) any other goods and services tax, or any tax applying to this agreement in a similar way; and

GST Law means the same as "GST law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Installer means either a third-party contractor, the Customer (if they elect to install themselves), or Berg

Contracting Services (ABN 93 210 468 806) of 61 John St, Milpara WA, where the Customer has paid (as per the

Purchase Order Invoice) for installation services to be undertaken.

Price means the price of Equipment as specified in the Purchase Order Invoice.

Purchase Order means this Purchase Order agreement on which these General Terms and Conditions are

printed together with, attached to or embodied therein by reference (and includes any Purchase Order Invoice attached to this agreement).

Purchase Order Invoice means any Invoices that are attached to this Purchase Order agreement.

Supplier means Berg Contracting Services (ABN 93 210 468 806) of 61 John St, Milpara WA.

Taxes include all charges, duties, tariffs, levies and taxes of any kind which any taxing authority claiming

jurisdiction over this Purchase Order may assess or levy on account of or resulting from the Seller’s performance of this Purchase Order including, without limitation any value added tax or goods and services tax, the Seller’s operations, on account of the value of the Goods supplied under this Purchase Order or otherwise.

1.2 Interpretation

Words importing the singular include the plural and vice versa and words importing one gender will include all other genders. Headings are for ease of reference only and will not affect the interpretation of this agreement.

2 General

(a) These Terms and Conditions (which will only be waived in writing signed by the Customer and the

Supplier) will prevail over all conditions of the Customer’s order, to the extent of any inconsistency.

(b) The Equipment and all other products sold by the Supplier are sold to the Customer on these terms and

conditions.

3 Site preparation

(a) The Customer will prepare the Delivery Site in accordance with the direction of the Supplier if any.

(b) The Supplier may refuse to deliver the Equipment if the Delivery Site has not been prepared in accordance

with the preceding paragraph.

the circumstances described in the preceding paragraph, save that the Supplier will be deemed to have

approved the site if it does not carry out an inspection of the site prior to Delivery of the Equipment.

4 Delivery

(a) The Supplier will endeavour to deliver the Equipment on the date or during the period specified in the

Purchase Order Invoice or any other date as informed by the Supplier to the Customer.

(b) Delivery will be effected at the Delivery Site may be specified in the Purchase Order Invoice.

direct or indirect costs incurred by the subsequent delay in Delivery.

(d) The Supplier is not responsible to the Customer or any person claiming through the Customer for any loss

or damage to the Equipment in transit or delay in transit caused by any event of any kind or by any person

(whether or not the Supplier is legally responsible for the actions of that person).

5 Installation

(a) The Customer agrees that the Supplier will not be liable for any issues, damages, accidents resulting from

installation of the Equipment or failure to follow the operation or installation instructions contained in the

Operations Manual or on the Equipment.

6 Acceptance testing

(a) Upon installation of the Equipment, the Installer will check that the Equipment has been installed correctly and test the Equipment to check that the Equipment is in good working order.

(b) The Installer will perform the checks referred to in clause 6(a) within 14 days of the completion of

installation.

Installer – in the case that the Installer is a third party, to properly install the Equipment, the Customer must

seek appropriate remedy directly with the third-party Installer.

(d) The Supplier is not liable to remedy any defects where the goods were damaged after being delivered to

the Customer for reasons not related to their state or condition at the time of Delivery.

(e) The Customer agrees that the Supplier will not be liable to remedy any failure caused by the third-party

contractor’s installation of the Equipment. The Supplier is not liable to supply any installation services to

the Customer to remedy the third-party contractor’s failure to properly install.

(f) If the Equipment fails to be in good working order, and that failure is not caused by any negligence in the

third-party contractor’s installation, the Customer will grant the Supplier a further period of 90 days in which

to remedy the defect.

(g) Within the period prescribed in clause 6(b), and subject to the warranties in clause 12, in remedying the

defect the Supplier may elect at their own discretion:

(i) to replace any faulty parts for the Equipment or supply any equivalent parts of the Equipment;

(ii) to repair the Equipment;

(iii) to pay the cost of replacing the relevant parts of the Equipment or of acquiring equivalent part of the

Equipment; or

(iv) to pay the cost of having the Equipment repaired.

(h) If, after the period prescribed in clause 6(c), the Equipment still is not in good working order, the Customer

may at its option extend the test period or treat the failure to satisfy the requirement for good working order

as a Terminating Event.

(i) The Equipment will be deemed to be accepted if it the equipment is in good working order upon the

Supplier’s acceptance testing referred to in clause 6(a).

7 The Equipment

The Equipment will conform to the item description and configuration of the Equipment as specified in this

Purchase Order Invoice.

8 Operating manual

The Supplier will provide the Customer with a copy of the operating manual. The Supplier warrants that the

operating manual will be adequate for the purpose of enabling the Customer to operate and install the Equipment in a manner reasonably contemplated by the parties.

9 Price

(a) In exchange for the Supplier’s supply of Equipment, the Customer will make full payment of this Purchase

Order Invoice as specified in the Invoice no later than 30 days from the date of the Invoice.

(b) The Price is exclusive of all taxes, duties or surcharges relevant to this agreement or to the Equipment, its

Delivery or Installation.

that a different meaning is intended.

(d) In addition to paying this Purchase Order Invoice and any other amount payable or in connection with this agreement (which is exclusive of GST), the Customer will:

(i) pay to the Supplier an amount equal to any GST payable from any supply by the Supplier in respect

of which any amount that is payable under this agreement; and

(ii) make such payment either on the date when the Price or other amounts to which it relates is due or

within 30 days after the customer is issued with a tax invoice, whichever is the later.

(e) The Supplier will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Customer, any overpayment by the Customer for GST but the Supplier need not

refund to the Customer any amount for GST paid to the Commissioner of Taxation unless the Supplier has

received a refund or credit for that amount.

10 Title

(a) Title in the Equipment will pass to the Customer upon payment of the full balance of this Purchase Order

Invoice.

(b) The Customer acknowledges that the Supplier may register a financing statement in relation to its security interest in the Equipment.

receive notice of any verification statement relating to the registration of any such financing statement or

any related financing change statement.

(d) The Customer undertakes, if it disposes of any collateral (being the Equipment, proceeds and any other

product or mass that the Equipment may be or become part of), that it will receive proceeds at least equal

to the market value of the collateral, and that it will not allow any other security interest to exist over those

proceeds if that security interest could rank ahead of the Supplier's security interest. If such a security

interest does arise despite the previous sentence, the Customer must ensure that it receives cash

proceeds for the collateral at least equal to the market value of the collateral and must immediately pay

those proceeds to the Supplier in reduction of the amount owing.

(e) The Supplier can apply amounts it receives from the Customer towards amounts owing to it in such order

as the Supplier chooses.

(f) If the Customer defaults in the timely performance of any obligation owed to the Supplier, the Supplier may repossess the collateral and otherwise enforce its security interest in the collateral. The Supplier, for that

purpose, may enter any premises occupied by the Customer and remove the collateral, including by

detaching the Equipment from any other products to which they may be attached, or by detaching

Equipment from any land to which they may be fixed.

(g) To the extent that chapter 4 of the Personal Property Securities Act would otherwise apply to an

enforcement by the Supplier of its security interest in the collateral, the parties agree that the following

provisions of the Personal Property Securities Act do not apply, to the extent the Personal Property

Securities Act allows them to be excluded:

(i) enforcement methods) sections 125 (Obligation to dispose of or retain collateral), 129(2) and (3)

(Disposal by purchase), 134(2) (Proposal of secured party to retain collateral) and 137 (Persons

entitled to notice may object to proposal);

(ii) notices) sections 130 (Notice of disposal of collateral), 132 (Secured party to give statement of

account), and 135 (Notice of retention of collateral) and 136(5) (Retaining collateral free of

interests); and

(iii) rights to remedy) sections 142 (Entitled persons may redeem collateral) and 143 (Entitled persons

may reinstate security agreement).

(h) The Customer must promptly do anything the Supplier requires to ensure that its security interest is a

perfected security interest and has priority over all other security interests.

(i) Nothing in this clause is limited by any other provision of any other agreement between the Supplier and

the Customer. Nothing in this clause limits the Supplier's rights or the Customer's obligations apart from

under this clause.

(j) This clause survives the termination of any contract into which these conditions are incorporated.

11 Risk

Risk of loss or damage to the Equipment will pass to the Customer upon Delivery.

12 Warranties

(a) The Supplier warrants that the Equipment is newly manufactured and is free of any defects in materials

and workmanship.

(b) Subject to clause 12(c), the Supplier will rectify, at its own expense, any defect in the Equipment which is

notified by the Customer within a period of 30 days after acceptance and which defect renders the

Equipment unsuitable for the ordinary use contemplated by the Customer.

(c) The Supplier’s obligations under this warranty is limited to repairing or replacing any part or parts returned to the Supplier’s primary business premise, transportation charges prepaid, which prove upon inspection to be defective and which have not been misused. The Supplier is not liable to rectify any defects in the Equipment caused by any failure to follow operation or installation instructions contained in the manual or on the Equipment. Damage or failure to any parts due to freight damage or lack of maintenance is not covered under this warranty. The Supplier reserves the right to decline responsibility where repairs have

been made or attempted by others, or where non-genuine parts have been used. This warranty does not

cover downtime expenses incurred when the Equipment is in repair.

(d) The model name, serial number of the Equipment and proof of purchase must be provided with all

warranty claims.

(e) This warranty is non-transferable and applies to the original purchaser only.

(f) This warranty is applicable to units located in Australia only.

(g) This warranty will be immediately void if the Equipment is used for wash-down purposes or installed in an

outdoor environment.

(h) Subject to clause 12(c), the Supplier warrants that any replacement parts provided to the Customer

pursuant to clause 12(b) are newly manufactured and are free from defects in materials and workmanship.

If the replacement parts are found to be defective during a period of 90 days after the Installation of those

parts, they will be rectified or replaced at the Supplier's expense.

(i) The Supplier will not be liable for defects resulting from improper use of the Equipment, whether by the

Customer or by a third party.

(j) Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are

entitled to a replacement or refund for a major failure and compensation for any other reasonably

foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail

to be of acceptable quality and the failure does not amount to a major failure.

Structural Components

(k) Subject to clause 12(c), all structural and mechanical components of the Equipment are guaranteed for a

period of five (5) years, from the date of invoice, against defects in workmanship and/or materials when

installed, used and maintained according to recommendations.

Power Unit

(l) Subject to clause 12(c), power unit components (pump, hose and reservoir) are guaranteed a period of

one (1) year, from the date of invoice, against defects in workmanship and/or materials when installed,

used and maintained according to recommendations.

Electrical Components

(m) Subject to clause 12(c), all electrical components (including motor) are guaranteed a period of one (1)

year for parts only (excluding labour), from the date of invoice, against defects in workmanship and/or

materials when installed, used and maintained according to recommendations.

Exclusions

(n) This warranty does not include any consumable items such as hydraulic oil, lifting pads, oil seals, vee belts

and sliding blocks.

13 Termination

(a) For the purpose of this clause, each of the following is a Terminating Event:

(i) the breach or threatened breach by either party of any of its material obligations under this

agreement;

(ii) the appointment of any type of insolvency administrator in respect of the property or affairs of either

party;

(iii) the entry or proposed entry by either party into any scheme, composition or arrangement with any

of its creditors;

(iv) the merger with or the takeover of either party by another person; and

(v) any event described in this agreement as a Terminating Event.

(b) Subject to clause 13(c), this agreement may be terminated immediately upon the happening of a

Terminating Event at the option of the affected party.

other party notice of the happening of that event and require the breach to be remedied or a written

undertaking to be given that the breach will not occur, as the case may be. If the breach is not remedied or

the undertaking not given (as the case may be) within 90 days, the affected party may agree to waive or

suspend its rights under this clause at its sole discretion.

(d) Neither party will be liable for the consequences of an occurrence of any event beyond its reasonable

control.

(e) Nothing in this clause affects the right of the terminating party to pursue any other remedy available to it at law arising out of the Terminating Event, subject where applicable to any cap on, or exclusion of, liability

set out in this agreement.

(f) No order may be cancelled by the Customer except with the written consent of the Supplier. If there is a

cancellation of the order by the Customer, the Supplier has the right to claim indemnity against all losses

suffered by the Supplier as a result of such cancellation.

14 Confidentiality

(a) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

(b) A party will not be in breach of clause 14(a) in circumstances where it is legally compelled to disclose the

other party's Confidential Information.

engaged for the purposes of this agreement, do not make public or disclose the other party's Confidential

Information.

(d) Despite any other provision of this clause, a party may disclose the terms of this agreement (other than

Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and

accountants.

(e) This clause will survive the termination of this agreement.

15 Liability

Except in relation to liability for personal injury (including sickness and death), property damage or an

infringement of confidentiality or intellectual property rights, and subject to any non-excludable statutory liability, the liability of the Supplier for damages in respect of any act or omission of the Supplier in connection with its obligations under this agreement will not exceed the total amount payable (if any) specified in the Purchase Order Invoice, even if the Supplier has been advised by the Customer as to the possibility of such losses being incurred.

16 Implied terms and consumer guarantees

(a) Subject to clause 16(b), any condition or warranty which would otherwise be implied in this agreement is

excluded.

(b) Liability of the Supplier for breach of a guarantee conferred by the Australian Consumer Law (other than

those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:

(i) in the case of goods, to any one of the following as determined by the Supplier:

(A) the replacement of the goods or the supply of equivalent goods;

(B) the repair of the goods;

(D) the payment of the cost of having the goods repaired; and

(ii) in the case of services, to any one of the following as determined by the Supplier:

(A) the supplying of the services again; or

(B) the payment of the cost of having the services supplied again.

17 Entire agreement

This Purchase Order agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Equipment. No addition to or modification of any provision of this agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

18 Notices

All notices which are required to be given under this agreement must be in writing and must be sent to the

address of the recipient at their addresses as set out in the Purchase Order Invoice or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient's mail server.

19 Assignment

Neither party will assign, whether in whole or part, the benefit of this agreement or any rights or obligations under this agreement, without the prior written consent of the other party.

20 Law

This agreement will be governed by and construed in accordance with the laws for the time being in force in

Western Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of Western

Australia. Nothing in this clause is intended to undermine the jurisdiction of the Federal Court of Australia or

Federal Circuit Court of Australia.

21 Variation

No variation of this agreement will be effective unless in writing and signed by both parties.

22 Waiver

No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement will prejudice or

restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.

23 Severability

Should any part of this agreement be or become invalid, that part will be severed from this agreement. Such

invalidity will not affect the validity of the remaining provisions of the agreement.

24 Dispute resolution

Disputes or differences arising between the Customer and the Supplier will preferably be settled quickly and by negotiation. If the parties are unable to settle a dispute by negotiation within 2 weeks after negotiations commence, the parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC).

(a) The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation

operating at the time the dispute is referred to ADC (the Guidelines).

(b) The terms of the Guidelines are hereby deemed incorporated into this agreement.

In the event that the dispute has not settled within twenty-eight (28) days following referral to ADC, or such other period as agreed to in writing between the parties, the parties shall submit the dispute to arbitration.

Domestic Arbitration operating at the time the dispute is referred to arbitration (the Rules).

(d) The terms of the Rules are hereby deemed incorporated into this agreement.

(e) The arbitrator shall not be the same person as the mediator unless the parties each consent in writing to

the arbitrator so acting.

This clause shall survive termination of this agreement.

Terms and Conditions

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