1.1 These Terms, and no terms and conditions of the Customer, will apply to any order for and any supply of Goods and/or Services by GE Silos to the Customer.
2. Order for Goods / Services
2.1 Any quotation by GE Silos does not constitute an offer to supply.
2.2 Unless otherwise stated by GE Silos, any quotation by GE Silos will remain valid for 30 days from the date of the quotation provided that GE Silos may withdraw or vary a quotation at any time prior to GE Silos‘ acceptance of the terms of this contract.
2.3 Any Order by the Customer to GE Silos and/or any acceptance of any Goods and/or Services by the Customer will constitute agreement to these Terms by the Customer.
2.4 GE Silos will be entitled to rely on the accuracy of any information, instructions, reports, drawings, plans, specifications, properties and facts provided by the Customer.
2.5 If there are any errors in any information, instructions, reports, drawings, plans, specifications, properties or facts provided by the Customer to GE Silos, GE Silos will, in addition to GE Silos’s other rights under these Terms or at law, be entitled to vary the Price.
2.6 GE Silos may cancel any Contract at any time prior to delivery of the Goods and/or Services with no liability other than to repay any amount of the Price paid in advance of the cancellation.
3.1 Unless otherwise agreed by GE Silos in writing, the Price will be the amount contained in the quotation provided by GE Silos and is subject to variation (whether before or after the acceptance of an Order or before or after the formation of a Contract or during the term of a Contract).
3.2 Unless otherwise agreed by GE Silos in writing, GE Silos may invoice the Customer for Goods prior to the supply of the Goods and the Customer will pay the invoice within 14 days of the date of that invoice.
3.3 Unless otherwise stated by GE Silos in writing, the Price is exclusive of any delivery charges and exclusive of GST.
3.4 GE Silos may charge monthly compound interest on any overdue amounts owed by the Customer at a rate of 2% per annum above the rate set pursuant to the Penalty Interest Rates Act 1983, from time to time.
3.5 GE Silos may charge a holding fee for storage of the Goods if the delivery is delayed by the Customer not satisfying their obligations under this Contract or not being in a position to receive the Goods.
4.1 The deposit payable by the Customer to GE Silos upon the signing hereof shall be 50% of the contract price.
4.2 In the event of Default by the Customer in the payment of the purchase price, GE Silos may, in addition to and without prejudice to any other right or remedy of GE Silos, treat the contract as repudiated by the Customer and retain the deposit as and by way of an agreed assessment of liquidated damages suffered and costs incurred by GE Silos as a result of the default.
5. Variation of Contract Price
5.1 GE Silos shall endeavour to provide the goods at the contract price but GE Silos reserves the right to increase the price at its absolute discretion in the event of:
(a) Steel prices in Australia increasing by more than 5% (as determined by the Index of Commodity Prices set by the Reserve Bank) from the day of sale then GE Silos has the right to adjust the price to reflect said increase in steel prices;
(b) Any inaccuracy in any information given by the Customer to GE Silos and upon which GE Silos has based its price.
(c) Any additional Council requirements existing which in the opinion of GE Silos are outside the normal Council requirements for works of this nature.
(d) Any other additional works or labour being performed or required to be performed by GE Silos which, in the opinion of GE Silos, is outside the normal course of works.
(e) Any costs to GE Silos for delays caused by the Customer.
6. Customer to provide certain information
6.1 The Customer must provide to GE Silos all information, instructions, reports, drawings, plans, specifications, properties and facts relevant to the Goods and/or Services and performance of GE Silos’s obligations, at the time the Customer requests any quotation from GE Silos and prior to providing any Order to GE Silos.
6.2 If at any time GE Silos considers that any information, instructions, reports, drawings, plans, specifications, properties or facts provided by the Customer to GE Silos are not sufficient to enable GE Silos to supply the Goods and/or Services to the Customer in accordance with the Contract, the Customer must, at the Customer’s cost, provide such further information, documents or assistance as GE Silos considers reasonably necessary.
6.3 GE Silos will be entitled to rely on the accuracy of any information, instructions, reports, drawings, plans, specifications, properties, facts and foundations data provided by the Customer.
6.4 If there are any errors in any information, instructions, reports, drawings, plans, specifications, properties, facts or foundations data provided by the Customer to GE Silos, GE Silos will, in addition to GE Silos’s other rights under these Terms or at law, be entitled to vary the Price.
7. Completion Date
7.1 Completion of this contract shall occur when GE Silos has provided the Goods specified in the contract.
7.2 Any completion date referred to herein is an estimate only, GE Silos shall not be liable in any circumstances whatsoever for any delay or failing to meet the estimated delivery date or completion date. Substantial delay shall only enable a Customer as his sole legal remedy to cancel this Agreement in the event that the delay is due to circumstances within the direct control of GE Silos, but not otherwise. Delays which GE Silos shall not be liable for includes:
(a) A request by the Customer to vary the contract;
(b) Customer default under this Contract;
(c) Inclement weather causing delays;
(d) Civil commotion or industrial action affecting the manufacturing of materials or the work of tradespeople;
(e) A delay in getting approval from any relevant authority;
(f) Information required to be provided by the Customer has not been provided by the Customer;
(g) Any other cause that is beyond GE Silos’ direct control.
8.1 The risk in the Goods will pass to the Customer, and the Customer will be deemed to have accepted the Goods, immediately when GE Silos notifies the Customer that the Goods have been supplied.
8.2 Notwithstanding any other Clause contained herein, all insurance responsibilities for theft, damage or otherwise in respect of goods used in connection with the works shall pass to the Customer immediately upon delivery of the goods to the Customer or delivery on site at the job address or as otherwise arranged with the Customer.
9.1 The Customer will not receive title to Goods until the Customer makes full payment of the Price and any other amounts payable to GE Silos.
10. Planning Approval and Building Permits
10.1 The Customer is responsible for obtaining and paying for any planning approval or building approval that is required. The Customer can make no claims or requisitions whatsoever for any delays caused by obtaining planning approval or building approval.
11. Force Majeure
11.1 GE Silos will not be liable to the Customer for any failure to perform, or delay in performing, GE Silos’s obligations under these Terms if the failure or delay is due to any cause beyond GE Silos’s reasonable control and if any such failure or delay continues for a period of 14 days GE Silos may terminate any affected Contract.
12. Exclusion of Warranties
12.1 GE Silos will not be responsible for any promises, conditions, warranties or representations made by any of its representatives, employees or agents unless the same are expressly set out herein or given by GE Silos in writing, and the Customer acknowledges that these terms and conditions and such writing signed by GE Silos shall represent the whole agreement between the parties to the exclusion of any other agreement or understanding whatsoever.
12.2 Nothing in these Terms are intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or any Fair Trading Act except to the extent permitted by such Acts.
13.1 GE Silos’s liability for any Liability or Claim in relation to these Terms, any Contract, and any supply of Goods and/or Services (whether under statute, contract, tort, negligence or otherwise) will be limited to the amount of the Price paid by the Customer to GE Silos.
13.2 GE Silos will not be liable to the Customer for any Liability or Claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.
14. Release and Indemnity
14.1 The Customer indemnifies GE Silos and each member of GE Silos’s Personnel from and against any Liability or Claim arising directly or indirectly in relation to:
(a) the accuracy of all information provided by the Customer to GE Silos in relation to the Services, the Delivery Address or any other matters;
(b) the Customer’s breach of these Terms or any Contract;
(c) the negligence or wilful misconduct of the Customer or any member of the Customer’s Personnel;
(d) GE Silos or any member of GE Silos’s Personnel delivering the Goods in accordance with the Customer’s instructions;
(e) damage to the property of the Customer or any third party during any delivery of Goods;
(f) any spillage, breakage or contamination of Goods during any transport or delivery;
(g) the Goods and/or Services not being fit for any particular purpose;
(h) any tests in relation to Goods and/or Services;
(i) the Customer or any member of the Customer’s Personnel directly or indirectly causing any delay in the supply of any Goods and/or Services;
(j) GE Silos having to resupply the Goods and/or Services, or undertake any rework, as a result of the actions or omissions of the Customer or any third party;
(k) the Customer or any member of the Customer’s Personnel refusing to accept any delivery;
(l) the Customer or any member of the Customer’s Personnel purporting to cancel any Order or Contract; and
(m) any proceedings, claims and demands in relation to any secured property.
14.2 The Customer shall indemnify and keep indemnified GE Silos from and against all claims, demands, writs, summonses, actions, suits, proceedings, judgments, orders, decrees, damages, costs, losses and expenses of any nature whatsoever which GE Silos may suffer or incur as a result of any unauthorised use of the goods by the Customer or other third party.
15.1 GE Silos may immediately terminate, or suspend the performance of, any Contract and the Customer must immediately pay any money owed to GE Silos if:
(a) the Customer breaches a term of these Terms or any Contract and does not remedy the breach within 7 days of receiving a notice from GE Silos requiring the Customer to do so;
(b) the Customer breaches a term of these Terms or any Contract which is not capable of remedy;
(c) there is any change in the Control of the Customer; or
(d) the Customer becomes bankrupt under section 40 of the Bankruptcy Act 1966 (Cth) or the Customer is considered insolvent under the Corporations Act 2001 (Cth).
16.1 Should the Customer default in the payment of any part of the contract price by the relevant due date, without prejudice to any other rights GE Silos may have:
(a) Interest at the rate being two (2) per cent higher than the rate for the time being fixed by the Penalty Interest Rates Act shall accrue upon the amount outstanding and shall be paid by the customer to GE Silos.
(b) Any other amounts outstanding between the customer and GE Silos shall become immediately due and payable and shall be paid by the Customer to GE Silos.
(c) GE Silos may at its option cease to perform any works or supply any goods in relation to the works until receipt in full of all monies outstanding.
(d) GE Silos may retake possession of any goods supplied by GE Silos to the Customer which have remained the property of GE Silos.
(e) The Customer shall pay to GE Silos all reasonable costs of the default including all legal (on a Solicitor-own client basis) or other expenses incurred by GE Silos.
17. Warranties implied by law
The following warranties apply to this Contract:
(a) GE Silos warrants that all works will be carried out in a proper and workmanlike manner;
(b) GE Silos warrants that all materials and goods to be supplied by GE Silos will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new;
(c) GE Silos warrants that the work will be carried out in accordance with, and will comply with, all laws and legal requirements including, without limiting the generality of this warranty, the Building Act 1993 and the regulations made under that Act; and
(d) GE Silos warrants that the work will be carried out with reasonable care and skill.
In these Terms:
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Completion” means the occasion upon which GE Silos have completed the work specified in the contract and provided the Customer with a copy of the certificate of final inspection;
“Contract” means this contract to provide goods to the Customer; “Contract price” means the total amount payable under this contract; “Control” has the meaning set out in the Corporations Act; “Corporations Act” means the Corporations Act 2001 (Cth);
“Customer” means the owner of the land set out in provision 3 of Schedule 1 of this contract; “Goods” means the goods provided outlined in this contract;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Order” means any written or verbal order by the Customer to GE Silos for Goods and/or Services; “Price” means the price of the Goods and/or Services as nominated by GE Silos from time to time; “Terms” means these Terms and Conditions.