GENERAL TERMS AND CONDITIONS OF PURCHASE
FROM WINTERHALTER (AUSTRALIA) PTY LIMITED
1.1 Parties: These Terms are a legally binding agreement governing the purchase of Equipment, Consumables and Services from:
(a) Winterhalter (Australia) Pty Limited, (ABN 31 141 216 908) (Winterhalter); by
(b) You, either individually or for and on behalf of the entity or organisation that you represent (Customer, you, your, or yours).
1.2 Acceptance: By accepting a Quotation under these Terms; purchasing Equipment, Consumables or Services from Winterhalter; or completing an application for a Credit Account with Winterhalter, you will be deemed to have accepted:
(a) these General Terms and Conditions of Purchase;
(b) the Credit Application (as applicable);
(c) our Service Call Policy;
(d) the Winterhalter Privacy Statement;
(together, the Terms). Current versions of these documents are available on our website or can be provided upon request.
1.3 Authority to contract: Where you are accepting the Terms on behalf of an entity or organisation that you represent, you are confirming that you have all requisite authority to enter into these Terms on behalf of that entity or organisation, and hereby warrant the same. You will be deemed to repeat that warranty each time you accept a Quotation on behalf of the entity or organisation that you represent.
1.4 Order of precedence: In the event of any conflict or inconsistency between the documents constituting these Terms, the documents shall be interpreted and construed in descending order from clause 1.2(a) to 1.2(e).
2. DEFINITIONS AND INTERPRETATION
2.1 Definitions: In these Terms, unless the context otherwise requires:
Australian Consumer Law means the law set out in schedule 2 of the Competition and Consumer Act 2010;
Authorised Person means Winterhalter or a person or agent approved by Winterhalter to undertake repairs or provide replacement parts for the Equipment;
Business Day means any weekday on which trading banks are open for business in New
South Wales, Australia excluding Saturdays, Sundays and public holidays;
Confidential Information means any information and other material (including without limitation, trade secrets, Intellectual Property and information relating to the Equipment, Consumables or Services):
(a) of a confidential or proprietary nature which the disclosing party makes available to the receiving party including anything that the receiving party derives from this information and material;
(b) relating to these Terms or the existence of these supply arrangements between Winterhalter and the Customer;
(c) relating to the business affairs of either party;
(d) disclosed by either party to the other on the express basis that such information is confidential; or
(e) which might reasonably be expected by either party to be confidential in nature,
provided that where information relates exclusively to one party, nothing in these Terms shall require that party to maintain confidentiality in respect of that information;
Consumables means the consumable products required to operate the Equipment in accordance with the ordinary operating parameters intended for the Equipment, including but not limited to detergent, descaling product and rinse-aids;
Consumer means a “consumer” as that term is defined in the Australian Consumer Law;
Credit Account means an account under which the Customer may obtain Equipment, Consumables and Services in advance of payment for the same;
Credit Application means Winterhalter’s Application for a Credit Account as completed by the Customer;
Customer has the meaning assigned to it in clause 1.1(b);
Data has the meaning assigned to that term in clause 10.1;
Data Licence has the meaning assigned to that term in clause 10.3;
Default Interest Rate means 12% per annum;
Delivery Address means the address for delivery for any Equipment or Consumables ordered pursuant to these Terms, as set out in the relevant Quotation or as otherwise agreed between the parties;
Equipment means the commercial dishwashers, glasswashers, and other ancillary equipment and components supplied, or to be supplied, by Winterhalter to the Customer, as set out in the relevant Quotation or other written arrangement between the parties;
Equipment Know How means all know-how, trade secrets and other Confidential Information and any Improvements relating to the manufacture, operation and maintenance of the Equipment;
Event of Default occurs if you:
(a) become, or are deemed to be, insolvent or bankrupt;
(b) make an assignment for the benefit of, or enter into or make any arrangement or composition with, your creditors;
(c) go into receivership or have a receiver, administrator, trustee and manager (or any of them) (including a statutory manager) appointed in respect of you and/or all or any of your property;
(d) pass a resolution, or any proceeding is commenced, for your winding up or liquidation (other than for the purposes of a solvent reconstruction); or
(i) breached a provision of these Terms and conditions that is incapable of remedy; or
(ii) failed to remedy any breach of these Terms and conditions that is capable of remedy within 10 Business Days of notice of that breach having been given stating the nature of the breach and requiring remedy;
Force Majeure Event means any or a combination of the following events:
(a) act of God, fire, earthquake, storm, flood, volcanic eruption, landslide or meteor strike;
(b) strike, lockout or other industrial disturbance except by the personnel of the party claiming the benefit of the force majeure event;
(c) explosion, public mains electrical supply failure, communications line failure or nuclear accident;
(d) sabotage, riot, civil disturbance, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not);
(e) requirement or restriction of, or failure to act by, any government, semi-governmental or judicial entity; or
(f) other cause beyond the reasonable control of the party claiming the benefit of the force
majeure event and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost,
but does not include:
(g) any event which the party affected could have prevented or overcome by exercising reasonable care; or
(h) a lack of funds for any reason;
Guarantor means a guarantor for the Customer’s obligations under or in connection with the Customer’s Credit Account;
(a) any improvement, discovery, enhancement, and/or invention developed, made or created by or for Winterhalter in relation to the Equipment, Consumables, Services and / or any of Winterhalter’s Intellectual Property Rights; and
(b) includes any and all Intellectual Property created, discovered or coming into existence as a direct result of the supply of the Equipment or Services, or any other rights granted or conferred under or otherwise contemplated by these Terms, and shall include all rights to any inventions, improvements, modifications or enhancements to any Equipment, the Equipment Know How and/or the Process, or any rights in respect of any Intellectual Property generally, including the right to apply for and obtain protection for these, and any rights to trademarks, branding or trade getup under which the Equipment are sold;
Intellectual Property means:
(a) all statutory and common law intangible property, including (without limitation) patents and patentable inventions, designs, Equipment varieties, trademarks, trade secrets, know-how, copyright and copyright works (including all moral rights), manufacturing technologies, methods and materials, all rights in relation to inventions, business names, domain names, confidential information, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields; and
(b) all intellectual property rights related to the categories of intellectual property listed in subparagraph (a) above, whether registered or unregistered (including applications for such rights) as may exist anywhere in the world at any time;
Intellectual Property Rights means any and all Intellectual Property rights of Winterhalter (whether owned or held on any licence terms) relating to the Equipment, Consumables, Services, Process, and the Equipment Know How, including any and all Improvements thereto;
Order has the meaning assigned to that term in clause 3.2;
PPSA means the Personal Property Securities Act 2009 (Cwth);
PPSR means the personal property securities register maintained under the PPSA;
Purchase Price has the meaning assigned to that term in clause 3.5;
Pricing Schedule means Winterhalter’s pricing schedule for its Equipment and Services as amended from time to time;
Process means all know-how, trade secrets and other Confidential Information, including Improvements, relating to Winterhalter’s Equipment;
Quotation means a quotation provided or agreed to by Winterhalter at the Customer’s initiation or request;
Related Entity has the meaning assigned to that term in section 9 of the Corporations Act 2001 (Cwth);
Security Interest means the security interest created by and referred to in clause 6.5
Service Call Policy means Winterhalter’s Australian Service Call Policy;
Service Fee has the meaning assigned to that term in clause 7.3;
Services has the meaning assigned to that term in clause 7.1 of these Terms;
Specifications means the specifications of the Equipment as set out in the Quotation or elsewhere in written communication with Winterhalter;
Terms shall mean have the meaning assigned to that term in clause 1.2;
Warranties has the meaning assigned to the term in clause 8.2;
Warranty Terms & Conditions means the warranty terms and conditions contained in Winterhalter’s Australian Service Call Policy; and
Winterhalter has the meaning assigned to it in clause 1.1(a).
2.2 General interpretation: In these Terms, unless the context requires otherwise:
Including: means including, without limitation to the generality or specificity of the surrounding words;
Statutes and regulations: reference to an enactment or any regulations is a reference to that
enactment, or those regulations as amended, or to any enactment or regulations substituted for that enactment or those regulations;
Construction: these Terms may not be construed adversely to a party just because that party prepared, or procured the preparation of, these Terms; and
Precedence: in the event of any inconsistency or conflict between a provision in these Terms and any specific provisions in the Order, the Order shall prevail. If applicable, the Customer agrees that its standard terms and conditions for suppliers (or variations thereof shall have no effect).
3. QUOTATION AND PURCHASE PRICE
3.1 Quotation: In response to a request for a Quotation from the Customer, Winterhalter will deliver a Quotation which sets out, as applicable, the Equipment and Consumables ordered, Specifications, Purchase Price, Delivery Date, Delivery Address and any other key particulars.
3.2 Acceptance: Where the Customer wishes to accept the Quotation, the Customer will return a copy of the Quotation to Winterhalter signed by a duly authorised representative of the Customer, at which point the Quotation will become binding (Order) and the Customer will be deemed to have accepted to be bound by these Terms for the purposes of that Order.
3.3 Changes: Any changes to the Order must be authorised in writing by both Winterhalter and the Customer’s authorised representatives. If any change requested by Customer will increase or decrease the Purchase Price, change the Delivery Date, Delivery Address or other key particulars or the Order, Winterhalter will advise the Customer of these changes for the Customer’s approval. Where the Customer requests a change to the Order but does not agree to an increase in the relevant Purchase Price, Winterhalter may exercise its right to charge a cancellation fee in accordance with clause 3.8.
3.4 Offer period: Unless otherwise specified by Winterhalter, any Quotation provided by Winterhalter shall remain valid for 20 Business Days after the date upon which it is provided to the Customer, unless otherwise agreed by Winterhalter in writing or withdrawn by Winterhalter
3.5 Purchase Price: The purchase price for the Equipment shall be the price set out in the Order. Where this is not specified, the pricing in Winterhalter’s Pricing Schedule as at the date of delivery shall apply, or where the Equipment and / or Consumables in question is not listed in the Pricing Schedule, as otherwise advised by Winterhalter (Purchase Price).
3.6 Variability: The Purchase Price is based upon rates and costs as at the date of the Quotation or estimate relating to the cost of materials, transport, labour, customs duty, insurance and other rates and
costs. The Purchase Price may be increased by the amount of any increase in the costs of any such items or any other factors (including, without limitation, any change in the exchange rate affecting the cost of supply and/or delivery of the component parts of the Equipment or Consumables) due to circumstances beyond Winterhalter’s control between the date of the Quotation and the date of actual delivery to the Customer. Where Winterhalter increases the Purchase Price by 5% or more under this clause 3.6, it will seek the Customer’s prior written consent to the increase.
3.7 Corrections: Clerical or transmission errors or omissions, whether in computation or otherwise, in any Quotation, acknowledgement or invoice shall be subject to correction by Winterhalter.
3.8 Cancellations: If the Customer Cancels the Order prior to Delivery, Winterhalter may, but is not obliged to, agree to the cancellation in exchange for the Customer paying Winterhalter a cancellation fee calculated as an administrative charge of 10% of the total Purchase Price payable for the relevant Order.
4. PURCHASE PRICE AND PAYMENT
4.1 Payments: The Customer will pay the Purchase Price and any other amount that is due and payable by the Customer under these Terms (together with any applicable taxes, duties or other imposts in accordance with the payment terms set out in the Quotation) by bank transfer into such bank account as Winterhalter may nominate from time to time without any deduction, set-off or counterclaim.
4.2 Invoices and payments: Winterhalter shall send the Customer a GST invoice in respect of any amounts due and payable by the Customer under these Terms. Unless a Quotation specifies otherwise, the Customer shall pay the relevant amounts within 20 Business Days of the date of Winterhalter’s corresponding invoice.
4.3 Default: Subject to clause 4.4 if the Customer does not pay the Purchase Price for any Order or other amount that is due and payable under these Terms on or before the due date for such payment, Winterhalter will be entitled (without prejudice to any other right or remedy it may have) to charge, in addition to any monies due under these Terms, interest on the outstanding amount at the Default Interest Rate, calculated on a daily basis from the date the payment became due until the date actual payment is made to Winterhalter (both before and after the date of any judgment of a relevant court).
4.4 Payment dispute: If the Customer (acting reasonably and in good faith) genuinely disputes any invoice, charge or expense notified or invoiced under these Terms, the Customer shall immediately notify Winterhalter in writing of that dispute. The Customer must pay any undisputed portion of the relevant invoice, charge or expense by the due date, and the disputed amount will be resolved by the parties in accordance with clause 13. Unless a
dispute is raised by the Customer within five (5) Business Days of the date of Winterhalter’s notice or invoice (time being of the essence), the Customer will be deemed to have accepted such notice or invoice as valid.
4.5 Payment of disputed amount: The Customer shall pay to Winterhalter any outstanding amount of the amount disputed pursuant to 4.4 and subsequently agreed or otherwise found to be payable by the Customer, within 3 Business Days of the date of resolution of such dispute.
4.6 Payments free and clear of all taxes: The parties acknowledge and agree that, unless expressly stated otherwise, all amounts stated in and payable under these Terms exclude all national, federal, state or local sales, use, excise, value added, goods and services taxes and withholding taxes or other taxes, customs duties or similar tariffs and fees.
4.7 Credit Account: The Customer may apply for a Credit Account with Winterhalter by completing, and having any relevant Guarantors complete the Credit Application and returning this to Winterhalter. Winterhalter will handle, use and disclose the Customer and Guarantor’s personal information in accordance with Winterhalter’s Privacy Statement.
4.8 Default under Credit Account: The Customer will be in default if the Customer does not pay any monies payable when called upon under its Credit Account. The Customer and the Guarantor jointly and severally acknowledge and agree that Winterhalter is authorised to contact a credit reporting agency throughout the term of the Credit Account to obtain a report about the creditworthiness of either the Customer or the Guarantor or both.
4.9 Information exchange: The Customer and the Guarantor jointly and severally authorise Winterhalter to exchange of information with a credit reporting agency or with other such parties as are necessary to give effect to the Credit Account and to the ongoing relationship between the parties hereto.
4.10 Reporting defaults: Winterhalter reserves the right to report a Customer's delinquent account to a credit reporting agency should payment remain outstanding for more than 45 Business Days. In addition, Winterhalter may refer the outstanding account for debt collection or issue legal proceedings to recover any outstanding invoices. Should an account be referred for debt collection the Customer acknowledges and agrees to pay debt collection charges to be calculated at not less than 20% plus GST and will be incurred on the day that Winterhalter refers the matter to their nominated debt collection agency. The Customer shall also be liable for interest and all legal recovery costs associated with such action on a solicitor and own client or indemnity cost basis.
4.11 Finance: Each of the Customer and Guarantors declare and warrant that any credit to be provided is to be applied for business purposes and not for personal, domestic or household use or consumption. The Customer shall provide a declaration to that effect to Winterhalter in connection with its Credit Application.
5.1 Delivery: Unless agreed otherwise, the parties shall arrange delivery and shipment of Equipment ordered by the Customer on an ‘Delivered at Place’ basis as follows:
(a) Winterhalter shall be responsible for arranging shipment of the Order. The Customer shall provide all reasonable commercial assistance to Winterhalter in making such shipping arrangements.
(b) Winterhalter shall pay for all costs of or relating to collection, shipment and delivery of the Order, but unless otherwise agreed with the Customer, Winterhalter may pass on / on-charge such costs to the Customer.
(c) All risk of loss, damage or destruction to the Equipment and / or Consumables shall pass to the Customer when the Equipment and / or Consumables are available for unloading at the Delivery Address.
(d) Unless expressly agreed between the parties in writing, the Delivery Date shall not be an essential term of contract.
5.2 Inspection of goods: The Customer must inspect the Equipment and / or Consumables as soon as practicable following Delivery. Where the Customer identifies that Equipment or Consumable are damaged or defective, the Customer must notify Winterhalter in writing within 24 hours of delivery, or the Equipment and / or Consumables will be deemed to have been accepted.
5.3 Place of Delivery: Winterhalter shall deliver the Equipment to the Delivery Address. Winterhalter shall use reasonable commercial endeavours to arrange delivery of the Equipment to the Delivery Address by the Customer’s requested delivery dates.
5.4 Failed delivery: If the Customer fails or refuses or indicates to Winterhalter that it will fail or refuse to take or accept delivery, the Equipment shall be deemed to have been delivered when Winterhalter notifies the Customer that they are available for collection from the premises notified by Winterhalter, or when Winterhalter was otherwise willing to deliver them. Winterhalter is entitled to charge an additional Delivery fee where the Purchaser declines or fails to accept the Equipment or Consumables when Delivery is attempted. Winterhalter shall also be entitled to charge for the cost of storage of any Equipment or Consumables which are ordered for Delivery where Delivery is delayed at the request of the Customer or where for circumstances beyond the control of Winterhalter, it is not able to make Delivery to the Customer.
5.5 Access: Where Equipment and or Consumables are to be shipped to the Delivery Address, the Customer shall provide access to and a suitable area for unloading in all weather conditions. Deliveries are to ground floor level, kerbside or loading dock area only. Where a crane is required, it is to be supplied by the Customer. Where a rear tailgate hoist is required, the cost will be charged to and paid by the Customer.
6. TITLE AND SECURITY
6.1 Retention of Title: Title to the Equipment and Consumables shall remain with Winterhalter and shall not pass to the Customer until Winterhalter has received full payment of the Purchase Price and all other amounts payable by the Customer in connection with the order, delivery and installation of the Equipment and Consumables. For the avoidance of doubt, installation services shall be governed by Winterhalter’s Service Call Policy. Receipt by Winterhalter of any cheque or other bill of exchange or any promissory note shall not be deemed to be payment or conditional payment until the same has been honoured or cleared, and until such time shall not prejudice or affect the rights, powers or remedies of Winterhalter in relation to the Customer, Equipment and / or Consumables.
6.2 Relationship: In relation to Equipment and / or Consumables supplied to the Customer for which payment in full has not been received:
(a) The relationship between the Customer and the Winterhalter shall be one of principal and agent;
(b) The Customer will hold the Equipment as bailee for Winterhalter;
(c) The Customer shall not use the goods as security or pledge or otherwise dispose of the goods except as expressly permitted by Winterhalter;
(d) Winterhalter may at any time terminate any agreement relating to the Equipment and the bailment without notice to the Customer and may thereupon take possession of the Equipment;
(e) Where the Equipment and / or Consumables are stored by the Customer, the Customer must store the Equipment and / or Consumables separately and clearly identify them as belonging to Winterhalter. If the and / or are installed or affixed to other objects, Winterhalter will be given full ownership of such new goods or objects;
(f) Where the Customer sells Equipment and / or Consumables, the Customer does so as agent of Winterhalter;
(g) Where the Equipment and / or Consumables are disposed of, the monies resulting from the disposal and all other proceeds received in respect of the Equipment and / or Consumables, including insurance proceeds will be kept separately in trust for Winterhalter;
(h) Where the Equipment and / or Consumables are disposed of, the Customer may only dispose of the Equipment in the ordinary course of its business on commercially reasonable terms;
(i) The Customer undertakes that until it delivers the goods to a third party, it will store the Equipment and / or Consumables on its premises separately from its own goods and inventory, or those of any other person, and in a manner which makes the goods readily identifiable as Winterhalter’s goods;
6.3 Access: The Customer irrevocably permits Winterhalter or any person authorised by Winterhalter in writing, upon giving reasonable notice to enter the Customer’s premises or at premises where the Equipment or Consumables are reasonably believed by Winterhalter to be held on the Customer’s behalf for the purpose of examining or recovering the goods. The Customer also agrees to indemnify and hold Winterhalter harmless for reasonable costs of removal, enforcement, and legal action in respect of the removal of any goods, the subject of this Agreement.
6.4 Application of payments: Winterhalter may apply any payments received from or on behalf of the Customer in reduction of any amounts owing by the Customer in such order and manner as Winterhalter thinks fit despite any direction to the contrary, and whether before or after the occurrence of an Event of Default.
6.5 Security interest: Where the Purchase Price is not paid in full prior to delivery of any Equipment and / or Consumables to the Customer, the Customer hereby:
(a) grants a security interest in favour of Winterhalter in each unit of the Equipment and / or Consumables supplied to the Customer under these Terms and Conditions as security for:
(i) the Purchase Price for each unit of the Equipment and / or Consumables;
(ii) all other amounts payable under these Terms in connection with the purchase, delivery and commissioning of the Equipment and / or Consumables in accordance with the relevant provisions of these Terms;
(b) undertakes to promptly do all things which Winterhalter may reasonably require to enable Winterhalter to obtain the full benefit of the Security Interest;
(c) agrees to, and to assist Winterhalter to, comply with all relevant requirements of laws and regulations relating to the creation, registration, maintenance and protection of security interests generally with respect to the Security Interest; and
(d) undertakes not to permit the Equipment to become a fixture on real property.
6.6 Customer’s waiver: The Customer waives its right to receive a verification statement in respect of any financing statement relating to the Security Interest pursuant to section 157(3) of the PPSA.
6.7 Contracting out: To the extent permitted by section 115 of the PPSA the Customer and Winterhalter contract out of the enforcement provisions of the PPSA.
6.8 Charge: The Customer charges in favour of Winterhalter any land that it owns (or acquires after the date of this agreement) as security for any and all monies owed to Winterhalter and hereby authorises and consents to Winterhalter registering a caveat over the land if the Customer defaults in making payment of any amounts owing to Winterhalter.
7.1 Services: The Customer acknowledges that the Equipment will require periodic servicing, maintenance and replacement of worn parts and components of the Equipment (Services). The Services shall be supplied in accordance with Winterhalter’s Australian Service Call Policy.
7.2 Replacements: All Services shall be provided exclusively by Winterhalter or an Authorised Person. The Customer shall provide reasonable co-operation to ensure that Winterhalter or its Authorised Person can perform the Services. The Customer shall not attempt to undertake any maintenance of the Equipment itself and warrants and represents that all parts and components will, as and when removed by Winterhalter for maintenance or replacement, be genuine and unaltered.
7.3 Service Fee: The Customer will pay Winterhalter all fees in accordance with Winterhalter’s Australian Service Call Policy (Service Fee).
7.4 Payment of Service Fees: Winterhalter will invoice the Customer for all Service Fees. The Service Fees shall be payable in accordance with the terms of Winterhalter’s invoice unless otherwise agreed to in writing between the parties from time to time.
8. WARRANTY AND REPRESENTATIONS
8.1 Business use: The Customer warrants and represents that the Customer is not a Consumer.
8.2 Warranties: The Equipment and Services are supplied to you subject to the warranties set out in Winterhalter’s Australian Service Call Policy and shall be subject to Customer’s compliance with the Warranty Terms & Conditions contained therein, and the Customer acknowledges and agrees that non-compliance with the Warranty Terms & Conditions may void the warranty cover (Warranties).
8.3 No other warranties: To the maximum extent permitted by law, the Warranties shall replace all other representations or warranties (statutory, express or implied) and all such representations and warranties (except any which may not be lawfully excluded) are expressly excluded. Nothing in these Terms excludes, restricts or modifies, or is intended to exclude, restrict or modify any guarantee, condition, warranty, right or liability implied by law (including any guarantee, condition, right or liability imposed under the Australian Consumer Law which cannot lawfully be excluded, restricted or modified.
8.4 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 Customer 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 Equipment, Consumables or Services.
9. INTELLECTUAL PROPERTY
9.1 Proprietary rights: The Customer acknowledges and agrees that Winterhalter is the sole owner of all Intellectual Property Rights in and relating to the Equipment, the Consumables, the Improvements, the Process, the know how (including the Equipment know how), and all Confidential Information in and relating to the Equipment supplied to the Customer under these Terms, and the Customer will not at any time in any way question, dispute or challenge Winterhalter’s ownership of any such rights, nor their validity.
9.2 Use restrictions: The Customer shall not, nor may the Customer permit any other person to:
(a) alter, remove or tamper with any trade mark, patent or copyright notices, or any confidentiality or proprietary notice, or any numbers, or other means of identification used on or in relation to the Equipment or Improvements;
(b) reverse engineer, reverse assemble or otherwise attempt to copy and/or replicate the whole, or the underlying component parts or composition of, the Equipment or Consumables;
(c) do any act (without lawful grounds but subject to prior consultation with Winterhalter) that would or might invalidate, contest the ownership of or be inconsistent with Winterhalter’s Intellectual Property Rights, Improvements, all Confidential Information in and relating to the Equipment or the trade marks, including registering or applying for any patent or similar right in respect of any Intellectual Property (including in respect of Improvements) in any jurisdiction.
9.3 No claim: The Customer will not (and will procure and ensure that any relevant persons within its control do not) at any time directly or indirectly challenge or contest Winterhalter’s ownership of the Intellectual Property Rights or any Confidential Information in and relating to the Equipment, Equipment and Improvements.
9.4 Infringements: The Customer must notify Winterhalter of any actual or potential infringement of any Intellectual Property Right and of any claim by a third party that the use of the Equipment, the Process, the know how, the Improvements or the Confidential Information in and relating to the Equipment infringes the rights of any other person, as soon as that infringement or claim comes to its attention. The Customer will do all that may reasonably be required by Winterhalter to assist Winterhalter in pursuing or defending any proceedings in relation to any such infringement or claim.
9.5 Damages insufficient remedy: Where the Customer breaches any part of this clause 9, the Customer acknowledges that damages may be an inadequate remedy, and that the remedies of injunction, specific performance, restitution and other equitable relief shall be available in respect of any threatened or actual breach of any such provision, and that no proof of special damages shall be necessary for the enforcement of the rights under this clause 9.5.
10. DATA LICENCE
10.1 Data: Where Winterhalter considers it appropriate to do so, Equipment 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 Equipment and for making changes to the software used by the Equipment. The Customer agrees to Winterhalter establishing and maintaining a connection to the Equipment. In particular, the Customer authorises Winterhalter to access the Equipment and to access and use the data that is accessible using the connection (Data).
10.2 Ownership of Data: The Customer agrees that all Data will be owned exclusively by Winterhalter and will not at any time in any way challenge
Winterhalter’s ownership of the Data. The Customer authorises Winterhalter, its Related Entities and any agent or other service provider (approved by Winterhalter) to make use of any Data collected in accordance with clause 10.1 for any purposes provided that the Customer’s confidentiality is maintained and the Data is anonymised where Winterhalter wishes to disclose Data.
10.3 Licence of Data: Winterhalter hereby grants to the Customer a non-assignable, royalty free licence to use all Data held or received by it strictly for the purposes of the use of the Equipment, for as long as the Customer remains the owner of any relevant Equipment and has not defaulted on its obligations under these Terms.
11. LIABILITY AND INDEMNITY
11.1 No consequential loss: To the fullest extent permitted by law and notwithstanding any other provision of these Terms, in no event will the measure of damages against Winterhalter for any breach of these Terms, in tort (including negligence), equity, or other action or contravention of any statute include, nor will Winterhalter be liable for:
(a) any breach of these Terms to the extent that the breach is attributable to the prior default, negligence, misconduct or breach of the Customer, its employees, subcontractors or agents;
(b) special, incidental, consequential or indirect loss or for any exemplary, punitive or speculative damages, economic consequential damage, loss of or damage to data, loss of use of equipment or services, overhead, cost of substitute equipment, services, software, facilities or replacement power, damage to equipment;
(c) facilities or services, downtime costs, claims for damages or costs related to clean-up, removal or release, remediation or disposal of any hazardous material, lost profits, business, revenue, goodwill, or anticipated savings; or
(d) any loss, damage or other liability, howsoever arising, due to the occurrence or continuation of a Force Majeure Event;
whether or not the other party was aware or should have been aware of the possibility of such loss or damage.
11.2 Liability for defects otherwise excluded: Winterhalter shall have no liability for any defects in the Equipment (including under clause 8) which cannot be proven to have their origin in bad material, faulty design or poor workmanship, e.g. those resulting from normal wear, improper maintenance, failure to observe the operating instructions, excessive loading, use of any unsuitable material, influence of chemical or electrolytic action, building or installation work not
undertaken by Winterhalter, or resulting from other reasons beyond Winterhalter’s control.
11.3 Limitation of liability: To the fullest extent permitted by law and notwithstanding any other provision of these Terms, if Winterhalter is held or found to be liable to the Customer for any matter relating to or arising in connection with these Terms, whether based on an action or claim in contract, equity, negligence, tort or otherwise, the amount of damages recoverable against the other party for all events, acts or omissions will not in aggregate exceed the lesser of an amount equivalent to the aggregate fees, charges, and Purchases Prices payable by the Customer to Winterhalter in the previous twelve (12) month period.
11.4 Indemnification for specific breaches: The Customer will indemnify and release Winterhalter against any loss or damage (whether direct or indirect) or expenses whether arising in contract, equity, tort (including in each case negligence), or otherwise, incurred because of any breach by the Customer of the prohibitions in clauses 9 (Intellectual Property) and 12 (Confidentiality) of these Terms.
12. HEALTH AND SAFETY
12.1 Distribution of Materials: The Customer shall (and shall procure that any employee, contractor, agent or representative using or operating the Equipment on its behalf shall) read and familiarise themselves with manuals, operating instructions, safety data sheets and / or any other material and guidance supplied by Winterhalter (Materials). Where the Customer resells the Equipment, the Customer is responsible for ensuring that the Equipment and Consumables are supplied to the ultimate end user with all relevant Materials supplied to the Customer by Winterhalter.
12.2 Compliance with Materials: The Customer shall (and shall procure that any employee, contractor, agent or representative using or operating the Equipment on its behalf shall) operate the Equipment and use and handle the Consumables strictly in accordance with the Materials supplied by Winterhalter.
12.3 Hazardous Materials: The Customer acknowledges that certain Consumables supplied by Winterhalter may be hazardous substances for the purposes of the Work Health and Safety Act 2011 (Cwth) and the Work Health and Safety Regulations 2011 and codes of practice made pursuant to those statutes and is aware of and will comply with its responsibilities under the legislation in relation to hazardous substances.
12.5 Confidential Information: A party receiving Confidential Information under these Terms shall treat (and shall ensure that its employees, advisors, agents, and any subcontractors treat) the Confidential Information with confidence and will not use or disclose such Confidential Information for any purpose other than performing their respective obligations under these Terms except:
(a) if required by law (including pursuant to the listing rules of any recognised public securities exchange on which a party’s shares or other securities may be listed or to which a party may otherwise be subject);
(b) to employees to the extent that they need to know the information for purposes related to these Terms and on condition that they agree to be bound by the terms of this clause;
(c) with the consent of the party who supplied the information;
(d) if the information is in the public domain at the date of these Terms, or comes into the public domain after the date of these Terms other than as a result of a breach of these Terms or other breach of confidence;
(e) if the information is already known or in the possession of the recipient without restrictions relating to disclosure before the date of receipt; or
(f) if the information is obtained from a source other than the party who supplied the information, provided that the source was not subject to any prohibition against disclosure.
12.6 Survival: The confidentiality obligations in this clause 12 shall survive the termination or expiry of these Terms.
13. DISPUTE RESOLUTION
13.1 Negotiation: If at any time any dispute arises between the parties in connection with the interpretation or application of the provisions of these Terms, its breach or termination, the validity of any documents provided by either party pursuant to the provisions of these Terms, or any other matter arising out of or in connection with these Terms (Dispute), then the following shall apply:
(a) Either party may, by written notice (Dispute Notice), require a representative nominated by each party (Representatives) to meet and attempt to resolve the Dispute.
(b) The Dispute Notice shall state the nature and subject matter of the Dispute and set a time and date (not to be later than five (5) Business Days from the date of the Dispute Notice) for the Representatives to meet (whether by telephone, videoconference or physical meeting) to attempt to resolve the Dispute.
(c) The Representatives shall in good faith use all reasonable commercial endeavours to attempt to resolve the Dispute.
(d) If the Representatives fail to resolve the Dispute pursuant to sub-paragraph (c) above within ten (10) Business Days of meeting to resolve the Dispute then either party shall, by written notice to the other, refer the dispute for resolution to the Managing Director of Winterhalter and the Customer’s equivalent.
13.2 Mediation: If the parties fail to resolve the Dispute pursuant to the procedures set out in clause 13.1 within 20 Business Days from the date of the Dispute Notice, or if a party fails or refuses to comply with those procedures, the parties will immediately be deemed to have submitted the Dispute to mediation by a single mediator agreed upon in writing by the parties or (if they are unable to agree on a mediator within five (5) Business Days after the submission to mediation) by a mediator nominated (on application by any party to the Dispute) by the President of the New South Wales Law Society (or the President’s nominee). In the event of any submission to mediation:
(a) the mediator will not be acting as an expert or as an arbitrator;
(b) the mediator will determine the procedure and timetable for the mediation; and
(c) the parties will share equally the cost of the mediation.
13.3 No proceedings: Unless a party has complied with clause 13.1 and 13.2, that party may not commence court proceedings relating to the Dispute, except:
(a) where the party seeks urgent injunctive relief; or
(b) where the Dispute relates to compliance with this clause.
13.4 No disruption: Pending resolution of the Dispute, the parties will continue to perform their respective obligations under these Terms, unless otherwise agreed to in writing.
14. FORCE MAJEURE
14.1 Notwithstanding any other provision of these terms and conditions, non-performance by Winterhalter of any of its obligations under these terms and conditions will be excused, without liability for non-performance, during the time and to the extent that performance is prevented, wholly or substantially, by a Force Majeure Event either affecting Winterhalter or affecting You to such an extent that Winterhalter is unable to perform its relevant obligations. Performance of any obligation affected by a Force Majeure Event will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure Event.
15.1 Assignment: The Customer may not assign these Terms, in whole or in part, without the prior written consent of Winterhalter. A change in control of 50% or more of the voting shares in the capital of a Customer who is a body corporate shall be deemed an assignment for the purposes of this clause 15.1.
15.2 Waiver: No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by Winterhalter in respect of any breach of the Customer’s obligations under these Terms is to:
(a) operate as a waiver or prevent the subsequent enforcement of that obligation; or
(b) be deemed a delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence in respect of, or a waiver of, any subsequent or other breach.
15.3 Severance: Any unlawful or voidable provision in these Terms will be read down so as to be valid and enforceable or, if it cannot be read down, will be severed from these Terms without affecting the validity, legality or enforceability of the remaining provisions, provided that the reading down or severing does not materially affect the purpose of or frustrate these Terms.
16. Entire agreement:
These Terms,and any Quotation incorporating these Terms:
(a) constitute the entire understanding and agreement of the parties relating to the transactions contemplated by these Terms; and
(b) supersede and extinguish all prior agreements, arrangements and understandings between the parties relating to the transactions contemplated by these Terms.
16.2 Amendment: Winterhalter reserves the right to review and amend any of these Terms at any time and from time to time. If, following any such review, there is any change to these terms and conditions such change will take effect from the date on which Winterhalter gives notice to the Customer and shall apply in respect of all future sales of Equipment or Services to the Customer.
16.3 Governing law: These Terms shall be governed by and will be construed in accordance with the laws of the State of New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales.