TERMS & CONDITIONS

1.         Agreement

1.1      The contract between Johnlangco Pty Ltd trading as Complete Crane Solutions (ABN 36 646 166 994) (CCS) and you the client (Client) relating to the Products or Services are subject to these terms and conditions (Terms) and/or other documents (if any) including any Quotation to which these Terms are attached, (together, the Contract).

1.2      1.2 These Terms may be accepted by the Client by: (a) Client signing these Terms; or (b) Client accepting any Quotation; or (c) Client (or its representative) issuing a Purchase Order or similar request for Products or Services; or (d) Client proffering any counteroffer or terms and conditions of Client.  For the avoidance of doubt, Client’s counteroffer or terms and conditions of Client (if any) do not form part of the Contract.

2.         Definitions

2.1      In these terms and conditions, the following defined terms have the corresponding meanings, unless the context otherwise requires.

(a)       Consequential Loss means loss of product, loss of contract, loss of profit, loss of business reputation, loss of opportunities, loss of production, loss of revenue howsoever arising and whether in an action in contract, tort (including negligence), in equity, under statute or on any other basis.

(b)       Materials means any software, materials, information, instructions or guidance provided by or on behalf of CCS in relation to the Services.

(c)      Price means the particular price or rate that is applicable to the supply of Products or the provision of Services under the Contract.

(d)      Product means any applicable product offered, sourced or sold by CCS.

(e)      Purchase Order means any purchase order or similar request for Products or Services issued by the Client.

(f)       Quotation means the quotation (if any) issued to the Client by CCS at the request of the Client and otherwise in accordance with clause 3 of these Terms (and, where the context requires, “Quotation” includes am “Additional Quotation”).

(g)     Services means any maintenance, repair, manufacturing, inspection, delivery, installation or similar services offered by CCS as set out in the Quotation.

3. Quotations

4.Supply of Products or Services

4.1 Client may issue a Purchase Order to CCS.

4.2 CCS may accept any Purchase Order in writing to Client.

4.3 Client engages CCS to provide the Services as an independent contractor.

4.4 Client expressly acknowledges and agrees that it does not have any proprietary rights to any Materials, that all intellectual property in such Materials                                      belongs to CCS and Client must not copy, reproduce, assign or sell any Materials at any time.

4.5 The Client may only cancel a Purchase Order with 14 days prior written notice.

4.6 Any variation to the Quotation, Purchase Order or Services must be agreed in writing between CCS and the Client.

5. Delivery, title and risk

5.1 Unless otherwise agreed in writing between the Supplier and Client, Products will be delivered on an EXW (ex-works) basis at CCS’s premises.

5.2 Subject to these Terms, title in the Products will pass from CCS to the Client (or its nominated agent) when CCS receives payment in full for such Products, unless otherwise agreed in writing by CCS.

5.3 Risk in Products delivered on an EXW (ex-works) basis will pass on delivery to the Client (or the Client’s agent or representative) at CCS’ premises or such other place of delivery in accordance with these Terms.

5.4 Products delivered by CCS to the Client other than on an EXW basis will pass on delivery to the Client at the Client’s premises (or other named place).

6. Delivery, title and risk

6.1 Unless otherwise agreed in writing between the Supplier and Client, Products will be delivered on an EXW (ex-works) basis at CCS’s premises.

6.2 Subject to these Terms, title in the Products will pass from CCS to the Client (or its nominated agent) when CCS receives payment in full for such Products, unless otherwise agreed in writing by CCS.

6.3 Risk in Products delivered on an EXW (ex-works) basis will pass on delivery to the Client (or the Client’s agent or representative) at CCS’ premises or such other place of delivery in accordance with these Terms.

6.4 Risk in Products delivered by CCS to the Client other than on an EXW basis will pass on delivery to the Client at the Client’s premises (or other named place).

7. Payment

7.1 Invoices issued by CCS are payable only in Australian dollars, unless otherwise agreed in writing by CCS.

7.2 Unless prior arrangements have been made, payment is to be made in accordance with the applicable Quotation. In the absence of payment details on any applicable Quotation, payment is due within 14 days of invoice.

7.3 CCS may refuse to accept payment by credit card and may impose conditions on any acceptance of payment by credit card.

7.4 If the Client pays by cheque, then payment only occurs when all cheques have been presented and cleared in full.

7.5 No payment due from or payable by the Client shall be set off or withheld on account of any claim asserted by Client.

7.6 To the extent allowed by law, CCS does not offer any refunds in relation to its Products or Services.

7.7 CCS may require the Client to provide security for payment in a form acceptable by CCS prior to the supply of any Products or Services.

7.8 At its discretion, CCS may require a deposit to be paid on the supply of any Products or Services.  Any such requirement, including as to the timing of the deposit, will be notified to the Client.

7.9 At its discretion, CCS may require prepayment of all, or any of the costs set out in any Quotation, including but not limited to, third party inspection costs, prior to commencement of the Services or at any time during such performance.

7.10 If the Client fails to pay any amount to CCS when it is due, CCS (in addition to any other rights it may have) will be entitled to do any of the following:

(a) suspend further deliveries of Products or Services;

(b) retain possession or control of the Products until payment;

(c) enter upon any site on which the Products are located and retake possession of such Products;

(d) terminate the Contract without liability; or

(e) deduct any monies due or which may become due to the Client from any monies due or recoverable from the Client in respect of any bona fide claim howsoever arising.

8. Workplace Health and Safety

8.1 The Client must ensure that the site or location at which any Services may be performed by CCS (other than CCS’ own premises) is safe and suitable for such Services prior to performance of the Services. CCS reserves the right to refuse performance of the Services if, in the sole opinion of CCS or its personnel, the location is not safe or suitable.

9. Client representations and warranties

9.1 The Client represents and warrants to CCS that:

(a)it has full power and authority to enter into and perform its obligations under the Contract;

(b)all information provided to CCS by or on behalf of the Client is true and correct in all material respects and is not, whether by omission of information or otherwise, misleading;

 (c) it has not withheld from CCS any document, information or other fact material to the decision of CCS to enter into a contract with the Client;

(d) it is solvent within the meaning of section 95A of the Corporations Act 2001 (Cth);

(e)it has made its own independent enquiries from appropriate professionals on all statutory and regulatory compliance issues as relates to the Contract;

(f) prior to operating or using the Products following the completion or part completion of any Services performed by CCS on or to such Products, the Client will promptly, at its cost, fully inspect the Products to satisfy itself as to the compatibility and suitability of such Products with their intended use or purpose; and

(g) to the extent the Products (or any of them) are fitted with a load measuring device (LM Device), CCS makes no warranty or representation as to the LM Device or the functionality or compatibility of the Product at any time with the LM Device.

 9.2 The representations and warranties given in this clause 9 survive the Contract.

10. Warranties and liability

10.1 To the fullest extent permitted by law and except as otherwise provided herein all warranties, guarantees, conditions, rights and remedies, express or implied, statutory or otherwise in relation to the Products and Services, are hereby expressly excluded (except to the extent such liability is legally incapable of being excluded or limited).

10.2 Subject to any applicable law, CCS warrants that the Products and/or Services to be supplied under the Contract will conform to the description on the face of the Contract, will be of acceptable quality and that good title to the products will be transferred. 

10.3 CCS will not be liable for any losses or damages suffered by the Client as either a direct or indirect consequence of any regulatory non‑compliance whatsoever resulting from any act or omission on the part of the Client.

10.4 To the fullest extent permitted by law, the operation of Part 1F of the Civil Liability Act 2002 (WA) is excluded in relation to any and all claims, rights, obligations and liabilities arising under or in relation to these Terms howsoever such claims, rights, obligations or liabilities are sought to be enforced, and the parties agree that their rights, obligations and liabilities will be those which would exist if Part 1F of the Civil Liability Act 2002 (WA) did not apply.   

11.Limitation of liability

11.1 With regard to the supply of any Products or Services, to the fullest extent permitted by law, CCS will not be liable for any death, injury, loss, Consequential Loss or damage incurred, whether direct, consequential, incidental, punitive, exemplary or indirect, by statute, in tort or in contract.

11.2 CCS will not be liable for delay, failure or inability to deliver the Products or Services (or any part of them).

11.3 Notwithstanding anything to the contrary, CCS’s total liability to the Client or any third party under contract, statute or in tort for any loss, damage, liability or cost (including any legal costs) suffered or incurred by the Client or any third party will not, to the fullest extent permitted by law exceed the lower of:

(a) the amount covered by any valid and applicable insurance policy in the name of CCS; and

(b) the actual amount recoverable by CCS pursuant to the applicable insurance policy held by CCS.

11.4 Client has no right or authority to bind, power, assume or create any obligations for or on behalf of CCS, or make any representations or warranties for or on behalf of CCS.

12 Force Majeure

12.1 CCS will not be liable for any prevention of or delay in the performance of its obligations under the Contract which is caused by any event or circumstance which is beyond the reasonable control of CCS including any act of God, strike, lockout or other labour dispute, epidemic (or any associated lockdown), war, riot or civil commotion or any accidental breakdown of equipment or machinery necessary for the performance of the Services. 

13.Termination

13.1 It is an event of termination (Termination Event) if:

(a)the Client fails to pay any money payable to CCS when it is due;

(b) the Client breaches the Contract in a material respect;

(c) the Client suspends payment of its debts generally or it becomes unable to pay its debts when due;

(d) the Client ceases, or threatens to cease, to carry on business; or

(e) a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the Client’s assets or undertakings.

13.2 If a Termination Event occurs, CCS may (without affecting the accrued rights and obligations of the parties) in addition to any other rights or remedies it may have do all or any of the following:

(a) terminate the Contract immediately by notice to the Client; and/or

(b) suspend the Services under any Contract.

14. Dispute resolution

14.1 The parties using their best endeavours and acting in good faith must attempt to resolve any dispute arising under the Contract, prior to commencing any court proceedings, in accordance with this clause 14.

14.2 Negotiations shall be conducted in English between representatives of the parties who have authority to settle the dispute.

14.3 Negotiations must be conducted within 30 days of a party providing written notice to the other party of the matter and circumstances giving rise to the dispute (Notice of Dispute).

14.4 If the dispute has not been resolved within 30 days of a party giving a Notice of Dispute, the parties must refer the dispute to a mediator with all mediator fees and expenses payable equally between the parties.

14.5 If a mediator cannot be agreed upon within 30 days of a party giving a Notice of Dispute, either party may request the President of the Law Society of Western Australia to appoint a mediator.

14.6 Mediation must take place in accordance with any directions of the mediator within 60 days of the date of the Notice of Dispute.

14.7 Any dispute not resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in Western Australia.

  15. Overdue moneys and costs

  15.1 The Client agrees:

(a) to pay interest at the rate of 12% per annum on any money payable pursuant to the Contract which may from time to time be overdue and on damages which may be recoverable pursuant to the Contract; and

(b) to pay to CCS on demand by CCS the amount of any costs and expenses including legal costs incurred by CCS on a full indemnity basis by reason of default by the Client under the Contract.

  16. Competition and Consumer Act 2010 (CCA)

16.1 Where the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) apply, the provisions of these Terms will be read subject to the application of the CCA and in the case of any conflict, the provisions of the CCA will apply.

16.2 Nothing in these Terms is intended to limit or replace any rights of “consumers” as that term is defined in the CCA.

  17. Authority

17.1 The person purporting to enter into the Contract for and on behalf of the Client hereby covenants and agrees with CCS that he or she has the authority of the Client to enter into the Contract and bind the Client accordingly, and hereby indemnifies CCS, its officers and employees against any losses, costs and claims incurred by in the event of a breach of such covenant.

17.2 communication relating to the negotiations of the parties or the existence, subject

  18. Credit limit

18.1 If CCS grants any credit facility or nominates any credit limit, this is an indication only of its intention at the time.  CCS can vary or withdraw any credit facility at any time at its discretion and without any liability to the Client or any other party.  Credit facilities granted, if any, are not transferable without the consent in writing of CCS.

19. Confidentiality and intellectual property

19.1 Each party must treat the existence and terms of the Contract as confidential and will procure that its advertising agents, other agents, contractors and representatives treat as confidential unless disclosure is required by law.  No announcement or communication relating to the negotiations of the parties or the existence, subject matter or terms of the Contract may be made or authorised by a party unless the other party has first given its written approval.

19.2 CCS retains all copyright and intellectual property rights whatsoever in all materials it uses or provides to the Client relating to the Products and/or Services

20. General

20.1 The Contract is governed by the laws of Western Australia.  The Client and CCS submit to the non-exclusive jurisdiction of the courts of Western Australia.

20.2 Waiver of any right, power, authority, discretion or remedy arising upon a breach of or default under this agreement must be in writing and signed by the party granting the waiver.

20.3 Nothing in the Contract shall constitute an agency, employment or partnership relationship between the parties or any of their respective employees, contractors, servants or agents, unless an agreement in writing provides otherwise.

20.4 If any term or part of these Terms is found to be illegal or unenforceable, that part or term shall be deemed not to be part of these Terms and the remainder of these Terms shall continue in full force and effect.

21. Interpretation

21.1 In these Terms headings and bold type are for convenience only and do not affect the interpretation of these Terms and, unless the context otherwise requires:

21.2 words importing the singular include the plural and the converse;

21.3 where a word or phrase is defined, its other grammatical forms have a corresponding meaning;

21.4 an expression importing a natural person includes an individual, a firm, a body corporate, an unincorporated association and any government agency;

21.5 a reference to legislation or to a provision of legislation includes any modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;

21.6 a reference to a party to a document includes that party’s successors and permitted assigns; and