Terms and Conditions of Trade
- Definitions and Interpretation
“Agreement” means the contract resulting from acceptance of an offer made to supply Products and includes these terms and conditions of trade;
“Confidential Information” means information that is by its nature confidential but does not include information which is already known to the receiving party at the time of disclosure by the other party, or information which is in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement;
“Delivery” means the delivery of the Products to the Purchaser or to any third party at the request or direction of the Purchaser and to “Deliver” means to do so;
“Delivery date” means the date, (if any) which is specified for Delivery of the Products in the Schedule, or in some other written form agreed between Winterhalter and the Purchaser;
“GST” means the same as it means in the GST Law;
“GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth)in Australia and the Good and Services Tax Act 1985 in NZ;
“Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademark, design, patent, circuit layout, business and domain name, invention, and other result of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
“Personal Property Securities Act” and “PPSA”, where the Products are supplied to a Purchaser who is an Australian entity or where the Products are supplied in and located in Australia mean the Personal Property Securities Act 2009 (Cwth) and where the Products are supplied to a Purchaser in New Zealand and are located in New Zealand, mean the Personal Property Securities Act 1999 (NZ);
“Price” means the Price of the Products as specified in the Schedule, or in some other written form agreed between Winterhalter and the Purchaser;
“Products” mean any Products which are detailed in the Schedule or in any attachment to these terms and conditions or document referring to these terms and condition;
“Purchaser” means the person or corporation named and described as the purchaser on the front page of this Agreement or to whom these terms and conditions otherwise apply, and
“Schedule” means the schedule to any order, quotation or Agreement to which these terms and Conditions of Trade are attached.
“Winterhalter” means Winterhalter (Australia) Pty Limited (ABN 31 141 216 908);
Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders.
Headings are for ease of reference only and shall not affect the interpretation of this Agreement.
Nothing in these terms and conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restrict or modified.
These terms and conditions shall prevail over all conditions of any Purchaser’s order, to the extent of any inconsistency.
Words defined in the GST Law have the same meaning in this Agreement, unless the context makes it clear that a different meaning is intended.
- Price and Payment Terms
- In consideration of Winterhalter’s agreement to Deliver the Products, the Purchaser agrees to pay the Price to Winterhalter.
- Except where it is indicated in the Schedule that payments are to be deferred or made by instalments, the Purchaser shall pay the full amount of the Price immediately upon receipt of Winterhalter’s invoice and, in any event, prior to Delivery of the Products.
- Except where expressly indicated otherwise, the Price is exclusive of all taxes, duties or surcharges relevant to this Agreement.
- The Purchaser must make payment in cleared funds of all amounts due to Winterhalter directly into an Australian bank account as specified from time to time by Winterhalter, without any deduction, denominated in Australian currency.
- If any payment is not made within seven days after the due date, Winterhalter may charge, and the Purchaser must pay, interest at the rate of 12 per cent per annum, calculated on a daily basis and all costs and expenses incurred by Winterhalter in obtaining payment of the overdue amount. If payment is not made within 14 days of the due date, Winterhalter may either grant an extension of time for payment or, at its option, treat the failure to pay as a terminating event or take such action that it considers appropriate to recover the overdue amount.
- If the Purchaser disputes the whole or any part of the amount claimed in an invoice submitted by Winterhalter pursuant to this Agreement, the Purchaser will pay the undisputed portion by the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed in this Agreement. If it is subsequently determined that a further amount is payable, the Purchaser will pay that amount together with interest at the rate of 12 per cent per annum calculated on a daily basis from the due date to the date on which payment of the further amount is received by Winterhalter.
- In addition to paying the Price and any other amount payable pursuant to or in connection with this Agreement (which except where otherwise expressly indicated, is exclusive of GST), the Purchaser must pay to Winterhalter an amount equal to any GST payable for any supply by Winterhalter in respect of which the Price or any other amount is payable under this Agreement; and make such payment of GST, either on the date when the Price or other amounts to which it relates is due or within 7 days after the Purchaser is issued with a tax invoice, whichever is the later.
- Winterhalter must, within 28 days of request from the Purchaser, issue a tax invoice (or an adjustment note) to the Purchaser for any supply under or in connection with this Agreement.
- Winterhalter will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Purchaser, any overpayment by the Purchaser of GST but Winterhalter need not refund to the Purchaser any amount for GST paid to the Commissioner of Taxation unless Winterhalter has received a refund or credit for that amount.
- Delivery and Freight Charges
- All Prices of Products, except spare parts, unless expressly specified otherwise, include the cost of scheduled Delivery within Sydney, Melbourne, Brisbane, Adelaide and Perth metropolitan areas. Deliveries to Hobart carry a surcharge. Individual Deliveries of equipment or attachments are subject to local carriage charges. Deliveries outside metropolitan areas will be charged from state capital cities and subject to carriage charges which will be paid by the Purchaser. Deliveries into Darwin and elsewhere in the Northern Territory will be charged from Sydney or Brisbane at Winterhalter's discretion.
- Product Deliveries are to ground floor level, kerbside or loading dock area only. Where a crane is required, it is to be supplied by the Purchaser. Where a rear tailgate hoist is required, the cost will be charged to and paid by the Purchaser.
- Winterhalter is entitled to make an additional Delivery charge where the Purchaser declines or fails to accept Products when Delivery is attempted.
- Any claim by the Purchaser for short or wrongful Delivery of any Product, or for any claim that any Product was found on Delivery to have been damaged, must be notified to Winterhalter in writing within 14 days after Delivery of the relevant Product to the Purchaser, and Delivery of the Product ordered will be deemed to have been successfully completed unless the Purchaser notifies Winterhalter of any claimed short or wrongful delivery or damage, within that 14 day period..
- Winterhalter shall be entitled to charge for the cost of storage of any Products which are ordered for Delivery where Delivery is delayed at the request of the Purchaser or where for circumstances beyond the control of Winterhalter, it is not able to make Delivery to the Purchaser.
- Cancellation before Delivery
- If the Purchaser wishes to cancel this contract before Delivery, Winterhalter may, but is not obliged to, agree to the cancellation but in that case a cancellation fee will be payable by the Purchaser calculated as an administrative charge of 10% of the total Price.
- Risk and Title
- The risk for the Products passes to the Purchaser on the date and at the time of actual Delivery.
- Notwithstanding Delivery to the Purchaser, title to the Products remains with Winterhalter until Winterhalter has been paid in full for the Products and for all individual contracts for the supply of the Products between Winterhalter and the Purchaser, and upon payment in full, property in and title to the Products passes to the Purchaser.
- The Purchaser is a bailee of the Products until such time as property in them passes to the Purchaser, and that bailment continues in relation to each of the Products until the Price of the Products has been paid in full to Winterhalter.
- Pending payment in full for the Products, the Purchaser must not supply any of the Products to any person outside of its ordinary or usual course of business, must not allow any person to have or require any security interest in the Products, and must insure the Products for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Purchaser carries on business.
- If, despite clause 5.4, the Purchaser supplies any of the Products to any person before all moneys payable by the Purchaser have been paid to Winterhalter, the Purchaser agrees that:
(a) it holds the proceeds of re-supply of the Products on trust for and as agent for Winterhalter immediately when these proceeds are receivable or are received;
(b) it must either pay the amount of the proceeds of re-supply to Winterhalter immediately when they are received or pay those proceeds into account with a bank or financial institution or ADI as trustee for Winterhalter;
(c) any accessory or item which accedes to any of the Products by act of the Purchaser or of any person at the direction or request of the Purchaser becomes and remains the property of Winterhalter until title to the Products passes to the Purchaser pursuant to clause 5.2; and
(d) if the Purchaser fails to pay for the Products, Winterhalter may recover possession of the Products at any premises owned, possessed or controlled by the Purchaser, and the Purchaser agrees that Winterhalter has an irrevocable license to do so.
- Personal Property Securities Act
- Capitalised expressions used in these Terms and Conditions of Trade have the meaning, if any, which is given to them in the Personal Property Securities Act.
- The Purchaser acknowledges Winterhalter’s Security Interest in all Products (“Collateral”) supplied to the Purchaser where the full purchase price for the Products concerned has not be paid under these Terms and Conditions of Sale, and in the proceeds of sale therof in the case where the Products are sold.
- Winterhalter reserves the right at its discretion to register a Financing Statement in respect of each category or Products supplied to the Purchaser which comprises Collateral.
- The Security interest given to Winterhalter by this clause 6 is a Purchase Money Security Interest.
- Winterhalter’s costs of registering a Financing Statement or a Financing Change Statement shall be paid by the Purchaser and where applicable, debited by Winterhalter against the Purchaser’s account with Winterhalter.
- On the request by Winterhalter the Purchaser shall promptly execute any documents and do anything else required by Winterhalter to ensure that Winterhalter’s Security Interest in the Collateral created by these Terms and Conditions of Trade constitutes a Perfected Security Interest over the goods comprising Collateral.
- The Purchaser must not agree to allow any person other than Winterhalter to file a Financing Statement or a Financing Change Statement over the Collateral without the prior consent of Winterhalter and shall notify Winterhalter immediately if it becomes aware of any person taking steps to file a Financing Statement or Financing Change Statement against any of the Collateral.
- The Purchaser and Guarantor (if any) waive their right to receive a copy of the Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to the Security Interest created by these Terms and Conditions of Trade
- The Purchaser agrees that the Purchaser will not affix the Collateral to any land and will not cause or permit any other person to affix the Collateral to any land.
- The Purchaser agrees to advise Winterhalter of the address in Australia or New Zealand where the Collateral is kept and will advise Winterhalter promptly of any change to that address.
- The Purchaser agrees to advise Winterhalter if the Collateral is to be used predominantly for any Personal, Domestic or Household purpose.
- Connected Devices
- Products supplied by Winterhalter to the Purchaser may be accessed electronically by Winterhalter using a connection to the internet either by a wired or wireless connection, or by a telephone or radio connection and may be monitored by Winterhalter as it deems appropriate, including for the purposes of monitoring its usage, monitoring the state of repair and location of the Products and for making changes to the software used by the Products. The Purchaser agrees to Winterhalter establishing and maintaining a connection to the Products. In particular, the Purchaser authorises Winterhalter to access the Products and to access and use the data that is accessible using the connection. The Purchaser grants to Winterhalter a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use data that is sourced from the Products in any way that Winterhalter considers to be appropriate.
- Non-Delivery or Delay
- If Winterhalter is unable to fulfil its contractual obligations to the Purchaser under this Agreement due to its inability to Deliver any of the Products, the limit of Winterhalter’s liability to the Purchaser will not exceed the refund of any part of the Price relating to the Products that it is unable to supply, and which has been paid to Winterhalter.
- All Delivery times made known to the Purchaser by Winterhalter are estimates only and Winterhalter is not liable for any loss, damage or delay occasioned to the Purchaser or its customers arising from late Delivery or non-Delivery.
- Winterhalter may at its option, Deliver the Products to the Purchaser in a number of instalments.
- If Winterhalter Delivers any of the Products by instalments, and any one or more of those instalments is defective for any reason, then the defective Delivery is not a repudiation of the contract of sale formed by these terms and conditions, and the defective instalment is a severable breach which gives rise only to a claim for compensation which is limited as provided in clause 13.
- Catalogue images and Specifications
- All photographic images, facsimiles, drawings, specifications and particulars of weights and dimensions contained in every catalogue, brochure or price list provided by Winterhalter are approximations only and any deviation from any of these does not vitiate any contract with the Purchaser or form grounds for any claim against Winterhalter.
- The descriptions and illustrations contained in any catalogue, brochure or price list and other advertising material do not form part of the contract of sale of the Products.
- Where payment for Products is not received by Winterhalter on the date due, Winterhalter has the right to delay or cancel the Delivery of the Products or any part of the Products which have not by then been Delivered, and the delay or cancellation of Delivery will not be deemed or considered to be a delay caused by Winterhalter or by non-Delivery by Winterhalter.
- Non-payment on the due date for payment of any amount agreed to be paid by the Purchaser is a terminating event for the purpose of clause 11.
- For the purpose of this Agreement, the following are terminating events:
(a) the breach or threatened breach by either party of any of its material obligations under this Agreement;
(b) the appointment of any type of insolvency administrator in respect of the property or affairs of either party;
(c) the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;
(d) the merger with, or the takeover of, either party by another person;
(e) any event described in this Agreement as a terminating event.
- This Agreement may be terminated immediately on the happening of a terminating event, at the option of the affected party.
- If the terminating event is one specified in clause 11.1(a)-(e), the affected party shall give to the 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. If the breach is not remedied or the undertaking not given within 14 days, the affected party may terminate this Agreement or, at its own option, agree to waive its rights under this clause if it is satisfied that the happening of the terminating event has not in any way prejudiced its position under this Agreement.
- Neither party shall be liable for the consequences of an occurrence of any event beyond its reasonable control.
- A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.
- A party will not be in breach of clause 12.1 where it is legally compelled to disclose the other party's Confidential Information.
- Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.
- Notwithstanding 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.
- This clause 12 will survive the termination of this Agreement.
- Liability Limitation
- Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, the liability of Winterhalter in damages (including special, indirect or consequential damages, which damages will be deemed to include loss of revenue, loss or profit and opportunity loss) in respect of any act or omission of Winterhalter in connection with its obligations under this Agreement, will not exceed the refund of the Price.
- This clause will survive the termination of this Agreement.
- Implied terms
- Subject to clause 14.2, any condition or warranty, which would otherwise be implied in this Agreement is hereby excluded.
- Where legislation implies in this Agreement any condition, guarantee or warranty as to merchantability, description, quality, suitability, or fitness of the Products for any purpose, or as to design, assembly, installation, materials or workmanship or otherwise, they are expressly excluded unless and to the extent that the legislation avoids or prohibits provisions in a contract which exclude or modify application of or liability under such condition, guarantee or warranty, and to that extent only, the implied condition, guarantee or warranty will be deemed to be included from this Agreement.
- The liability of Winterhalter for any breach of such condition, guarantee or warranty will be limited, at the option of Winterhalter, to either
(a) the supplying of the Products again without charge; or
(b) the refund to the Purchaser of the Price paid in respect of the Products to Winterhalter.
- Entire agreement
- This Agreement supersedes all prior agreements, arrangements, understandings and undertakings between the parties and constitutes the entire agreement between the parties relating to the Products.
- All notices which are required to be given under this Agreement shall be in writing and shall be sent to the address of the recipient set out in the Schedule 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 pre-paid letter, email or electronic facsimile.
- Any such notice shall be deemed to have been served when Delivered, if Delivered by hand, or 48 hours after posting by pre-paid letter, when the sender has received electronic confirmation that the message has been received and read, when the notice is sent by email, or on confirmation of transmission, when the notice is sent by facsimile.
- Neither party shall 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.
- This Agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales, Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
- No addition to or modification of any provision of this Agreement shall be binding upon the parties, unless made by written instrument signed by a duly authorised representative of each of the parties.
- No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
- Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement.
- Dispute resolution
- Any dispute or difference arising in connection with this Agreement shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators and Mediators, Australia Mediation and Conciliation Rules. If the dispute or difference is not settled within 30 days (unless the period is extended by agreement of the parties), it shall be submitted to arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations.
- Notwithstanding the existence of a dispute or difference, each party shall continue to perform the Contract.
- Intellectual Property
- All Intellectual Property Rights including present and future copyright in any work created by Winterhalter or its principals, agents and partners during the course of or in connection with this Agreement, are and will remain the property of Winterhalter.
- The Purchaser must not remove, deface or obliterate any identifying mark or number on any of the Products.