COLCHESTER MACHINE TOOL SOLUTIONS
Terms & Conditions of Sale
The customer's attention is drawn in particular to the provisions of clause 10.
1. Interpretation
1.1 Definitions:
ACL or Australian Consumer Law: means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Agreement: Agreement means these terms and conditions agreed between Colchester and the customer along with any documents attached to, annexed to or referred to in, each of them.
Business Day: means a day on which banks are open for general banking business in Sydney, New South Wales, excluding Saturdays, Sundays and public holidays.
Colchester: means Colchester Machine Tool Solutions Pty Ltd (ABN 60 000 161 106) which is also referred to as the supplier in this document.
Commencement Date: means the date this Agreement is signed by the last of the Parties.
Conditions: the terms and conditions set out in this document can be amended from time to time.
Consequential Loss: includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, Agreement, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price will not constitute “Consequential Loss”.
Consumer Law Rights: has the meaning given in clause 10.
Deposit: a non-refundable sum as set out in clause 7.3(a) or as otherwise set out in the Order Acknowledgment.
Force Majeure Event: means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Goods: means the goods to be supplied as set out in the Schedule, as adjusted in accordance with this Agreement.
Law: means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Goods.
Liability: means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, Agreement, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order Acknowledgement: Colchester’s acknowledgement of an Order as set out in clause 2.3.
Purchase Order: Customer's order for the Goods, as set out in the Customer's purchase order form, the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be.
Price: means the price set out in the Schedule, as adjusted in accordance with this Agreement.
Schedule: means the schedule to this Agreement.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Warranty Period: has the meaning given in clause 5.1.
Website: the Colchester’s website at: https://www.colchestermachines.au, or as otherwise notified to the Customer in writing from time to time.
1.2 Interpretation
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written excludes fax but not email.
2. Basis of Agreement
2.1 These Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order (Order Acknowledgement) , at which point and on which date the Agreement shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Agreement nor have any Contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue. Also quotations are confidential and solely for the customer. These quotations can only be shared with employees and officers of the customer.
3. Goods
3.1 The Goods are described in the Supplier's catalogue or on the Website, as modified by any applicable Specification.
3.2 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of the Agreement.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery
4.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows all relevant Supplier reference numbers , the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any); and
(b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 Where the Order sets out that the Goods will be delivered by the Supplier, the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. Delivery overseas shall be by the appropriate method stated in the Order , strictly interpreted in accordance with the definitions contained in INCOTERMS 2020 except that ‘FOB’ shall mean ‘FOB Liner Terms’. Delivery is completed on the completion of unloading of the Goods to an agreed position at the Delivery Location.
4.3 Where the Order sets out that the Goods will be collected by the Customer, the Customer shall collect the Goods from the Supplier's premises at 27 Foundry Road Seven Hills NSW 2147. Delivery is completed on the completion of loading of the Goods at the Collection Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5. Quality
5.1 Colchester warrants that:
(a) If the Goods are being delivered, for a period of 12 months from the date of delivery ; and
(b) If the Goods are being collected, for a period of 12 months from the date of the invoice,
(Warranty Period),
the Goods shall:
(c) confirm with their description; and
(d) be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost (providing full particulars of the alleged defect, serial numbers and invoice number),
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) there is a manufacturer's guarantee provided with the Goods;
(c) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
(d) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(e) the Customer alters or repairs such Goods without the written consent of the Supplier;
(f) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(g) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 56 to 59 of Australian Consumer Law are, to the fullest extent permitted by law, excluded from the Agreement.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 If Colchester is responsible for delivering the Goods to the customer, then the risk in the Goods shall pass to the Customer on completion of delivery.
6.2 If the customer is responsible for collecting the Goods from us, the risk in the Goods will pass to the customer once the Goods have been collected from the agreed collection location.
6.3 For the avoidance of doubt, the Supplier is not responsible or liable for any defects or damage caused in transit where the Goods are being collected.
6.5 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(d); and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer.
6.6 Where Goods are supplied to you without payment in full, you:
(a) are a bailee of the Goods until title in them passes to you;
(b) irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the Goods, including the registration of any security interest in our favour with respect to the Goods; and
(c) must not allow any other person to have or acquire any security interest in the Goods without our prior written consent.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the quote and accepted by the customer in their purchase order.
7.2 The price of the Goods:
(a) excludes amounts in respect of Goods and Services Tax (GST), which the Customer shall additionally be liable to pay to the Supplier
(b) excludes the costs of transport of the Goods, which shall be invoiced to the Customer. The Supplier will not be liable for the damage to any Goods delivered unpacked at the Buyer’s request.
7.3 Unless otherwise specified in the order acknowledgement, the Customer shall make payments as follows:
(a) Deposit (30%): due immediately upon the Order Acknowledgement date and is non-refundable;
(b) First payment (60% of remaining balance): due five Business Days before the Delivery Date; and
(c) Final payment (remaining 10% of balance): due within 30 days after the Delivery Date.
7.4 All payments due from the Customer shall be made in full and in cleared funds to a bank account nominated in writing by the Supplier and time for payment shall be the essence of the Agreement.
7.5 If the Customer fails to make a payment due to the Supplier under the Agreement by the due date, then, without limiting the Supplier's remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 2% a year above the Reserve Bank of Australia’s cash rate from time to time, but at 2% a year for any period when that cash rate is below 0%.
7.6 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):
(a) after a period of 5 Business Days from the relevant due date, cease supplying the Goods, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs);
(b) enter any premises where the unpaid Goods are stored or held, for the purpose of retrieving and taking possession of those Goods, and the customer agrees to provide any access, items and consents required to enable us to do so.
7.7 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.8 Unless otherwise specified in the purchase order and order acknowledgement, all payments shall be made in Australian Dollar.
8. Indemnity
8.1 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with the Customer’s breach of the Agreement.
9.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Goods by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.
9.2 Subject to your Consumer Law Rights, and the Warranty provided in Annexure 1, we provide all material, work and goods (including the Goods) to you without conditions or warranties of any kind, implied or otherwise (including without limitation any implied warranties of merchantability or fitness for a particular purpose), whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
9.3 This clause 9 will survive the termination or expiry of this Agreement.
10. Limitation of liability
10.1 References to liability in this clause 11 include every kind of liability arising under or in connection with the Agreement including liability in Agreement, tort (including negligence), misrepresentation, restitution or otherwise.
10.2 Nothing in the Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 51 to Section 55 of Australian Consumer Law
10.3 Subject to clause 10.2, the Supplier's total liability to the Customer shall not exceed the amount paid for the Goods under the Order to which the claim for liability relates.
10.4 Subject to clause 10.2, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
10.5 The Supplier shall not be liable to the Customer for any losses caused by their failure to comply with the Applicable Laws.
10.6 This clause 10 shall survive termination of the Agreement.
11. Termination
11.1 Without limiting its other rights or remedies, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy.
11.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Agreement or any other Agreement between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Agreement on the due date for payment.
11.3 Without limiting its other rights or remedies, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment.
11.4 On termination of the Agreement for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
11.5 Termination of the Agreement, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
11.6 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.
12. Force majeure
Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
13. General
13.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
13.2 Assignment: Subject to clauses11.3 and 11.4, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
13.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
13.5 Confidentiality:
(a) Each party undertakes that it shall not at any time during the Agreement and for a period of two years after termination of the Agreement, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.5(b).
(b) Each party may disclose the other party's confidential information:
to its employees, officers, representatives, Contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, Contractors, Subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 13.5; and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
(d) This clause 13.5 will survive the termination of this Agreement.
13.6 Disputes: A Customer may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting a representative of Colchester within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.
13.7 Entire agreement:
(a) The Agreement constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
13.8 Governing Law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Parties agree that the U.N. Convention on Contracts for the Sale of International Goods is excluded from application to this Agreement.
13.9 Intellectual Property Rights: The Supplier shall retain ownership of all Intellectual Property Rights in all designs, packaging, documents, drawings, information, and materials in any form provided to the Customer by the Supplier in relation to the Goods.
13.10 Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.11 Waiver:
(a) Except as set out in clause 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
13.12 Severance: If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement. If any provision of the Agreement is deemed deleted under this clause 13.12 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.13 Notices:
(a) Any notice given to a party under or in connection with the Agreement shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at the addresses for the Customer and Supplier as set out in the Order (or an address substituted in writing by the party to be served); or
(ii) sent by email to the addresses for the Customer and the Supplier as are set out in the Order (or an address substituted in writing by the party to be served).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13.14 Third party rights:
(a) Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
The rights of the parties to rescind or vary the Agreement are not subject to the consent of any other person.
13.15 Publicity: With your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of the Goods to you, including on our website or in our promotional material.
13.16 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
