GENERAL TERMS OF AGREEMENT
1 PROVISION OF TRAILER
1.1 Robuk agrees to design, construct and manufacture the Trailer in accordance with the provisions of this Agreement and the ADR for Delivery to the Customer.
1.2 Subject to clause 1.3, Robuk must use its reasonable endeavours to deliver the Trailer to the Customer for collection at the Delivery Location by the Estimated Delivery Date.
1.3 If Robuk is delayed in its estimated Delivery of the Trailer, Robuk must notify the Customer of its new Estimated Delivery Date.
1.4 Robuk must provide all safety, warranty, Registration and other relevant information (including the Maintenance Schedule) relating to the use of the Trailer upon Delivery.
2 VARIATIONS
2.1 During the design and construct of the Trailer, Robuk must not undertake any Variation unless the Customer has:
2.1.1 provided their prior written consent to such Variation; or
2.1.2 signed a Variation Confirmation and Robuk has accepted that Variation Confirmation.
2.2 Upon receipt of a Variation Proposal, Robuk must:
2.2.1 assess whether the Variation Proposal is capable of being carried out having regard to the stage of construction of the Trailer;
2.2.2 determine whether the Variation Proposal would be compliant with ADR; and
2.2.3 advise what details of the proposed Variation that Robuk is willing to undertake and what increase or decrease there would be to the Purchase Price (if any) such Variations were carried out.
2.3 If, after the occurrence of the events set out in clause 2.2.1 – 2.2.3, the Customer provides a signed Variation Confirmation to Robuk, or otherwise instructs Robuk to carry out the Variations that Robuk is willing to carry out, the Customer accepts any variation to this Agreement as a consequence of Robuk undertaking the Variation (including, but not limited to, variations to the Purchase Price and Estimated Delivery Date).
3 DELIVERY AND ACCEPTANCE OF TRAILER
3.1 Robuk must provide a Delivery Notice to the Customer at least 5 Business Days before it reasonably expects that the Trailer will be ready for Delivery.
3.2 On Delivery the Customer may inspect the Trailer and, unless the Trailer is Defective and the Customer has given Robuk a Defects Notice, pay any part of the Purchase Price due on Delivery and take possession of the Trailer.
3.3 If during the inspection the Customer identifies alleged Defects in the Trailer, it may give Robuk a Defects Notice.
3.4 If the Customer issues a Defects Notice prior to taking possession of the Trailer, Robuk must either:
3.4.1 remedy the alleged Defects at its sole expense as soon as practicable; or
3.4.2 set out in reasonable detail the reasons as to why the Trailer is not Defective.
3.5 If Robuk carries out remedy works under a Defects Notice, the Customer shall be provided a further opportunity to inspect the Trailer to determine whether it is Acceptable.
3.6 The Customer will be deemed to have Accepted the Trailer if:
3.6.1 the Customer does not inspect the Trailer on Delivery; or
3.6.2 takes possession of the Trailer following Delivery.
4 RISK AND TITLE
4.1 Risk in the Trailer passes to the Customer on Acceptance of the Trailer.
4.2 Title to and property in the Trailer passes to the Customer on the later of:
4.2.1 Acceptance; and
4.2.2 payment of the Purchase Price in full without deduction, counterclaim or setoff.
5 DEPOSIT
5.1 The Customer must pay the Deposit to Robuk in accordance with the Payment Terms.
5.2 Robuk may but is not obliged to apply the Deposit towards the costs of Registration and the Customer’s obligation to pay Purchase Price.
5.3 Robuk is entitled to forfeit the Deposit and retain it for its own benefit if this Agreement is terminated for any reason other than the default of Robuk. Robuk will return the Deposit to the Customer (less any amounts applied with any amounts in accordance with clause 5.2) if this Agreement is terminated due to the default of Robuk.
6 PAYMENT
6.1 The Customer must pay Robuk the Purchase Price for the Trailer in accordance with the Payment Terms.
6.2 The Purchase Price is inclusive of all freight, insurance and delivery costs, taxes, registration and other charges levied or payable in respect of the Trailer unless this Agreement expressly provides otherwise.
6.3 Robuk must provide invoices in the form of a valid tax invoice for the purposes of the A New Tax System (Goods and Services Tax) Act 1999 and must include:
6.3.1 an invoice number and date;
6.3.2 the total amount payable;
6.3.3 details of any adjustments to the invoice; and
6.3.4 authorisation confirmation.
7 INTELLECTUAL PROPERTY
7.1 The Customer must not do any act or thing which does, or may, jeopardise the Intellectual Property Rights of Robuk, including, but not limited to, in any materials given by the Robuk to the Customer in the course of negotiating, or otherwise in connection with this Agreement, including the Specifications.
7.2 All Intellectual Property Rights in and to all materials and inventions created by Robuk in the course of providing the Trailer vest in Robuk upon creation of the materials and inventions respectively.
7.3 The Customer indemnifies, and keeps indemnified, Robuk from and against all and any Claims that Robuk may incur or suffer as a result of any Claim by any person that the Customer has infringed the Intellectual Property Rights of that person.
7.4 This clause 7 survives the expiry or termination of this Agreement.
8 LIMITATION OF LIABILITY
8.1 Notwithstanding any other provision in this Agreement, no party will, in any circumstances, be liable to any other party or any other person for any Consequential Loss in relation to this document or the transactions contemplated by it. This clause 1 does not apply to the Customer’s liability under clause 7.3.
8.2 The maximum liability of Robuk under this Agreement is limited to the Purchase Price.
9 DEFAULT AND TERMINATION
9.1 It is an Event of Default if:
9.1.1 (failure to pay) the Customer fails to pay the Purchase Price, or any part of the Purchase Price, within 5 days of the Purchase Price, or any relevant part of the Purchase Price, becoming due and payable; or
9.1.2 (breach) except for any obligation to pay money, a party fails to comply with any material obligation owing by it under this Agreement which is either not capable of being remedied, or, if capable of being remedied, is not remedied within 20 Business Days of receipt of a notice from the other party which sets out details of the breach and requires it to be remedied.
9.2 A party may terminate this Agreement immediately if:
9.2.1 an Insolvency Event occurs in relation to the other party; or
9.2.2 the other party has committed an Event of Default.
9.3 Where Robuk terminates this Agreement, the Customer must pay an amount of the Purchase Price which Robuk advises (acting reasonably) represents the stage of the Trailer construction as at the time of termination.
9.4 Expiry or termination of this Agreement will not affect any accrued rights or remedies a party may have regarding this Agreement unless explicitly stated otherwise in this Agreement.
9.5 Clause 9.3 survives termination or expiry of this Agreement.
10 GST
10.1 In this clause 11:
10.1.1 terms used in this clause have the same meaning as in the A New Tax System (Trailer and Services Tax) Act 1999, unless the context requires otherwise;
10.1.2 supplier means the entity which makes a supply.
10.2 The recipient must pay to the supplier an additional amount on account of GST (GST Amount) equal to the consideration payable by the recipient to the supplier for the supply multiplied by the prevailing GST rate.
10.3 The GST Amount is payable no later than the time the consideration to which the GST Amount relates is payable by the recipient under this Agreement, provided the supplier has issued a tax invoice to the recipient.
10.4 To the extent that the consideration for a supply consists of the reimbursement or indemnity for any liability (including costs and expenses) incurred by the supplier, in this Agreement:
10.4.1 the amount of that liability shall be reduced by the amount of any input tax credit to which the supplier is entitled as a result of incurring the liability; and
10.4.2 the recipient must also pay the GST Amount relating to the reimbursement or indemnity for that liability.
11 NOTICES
11.1 Notices under this Agreement must be in writing and may be delivered by hand, by pre-paid post, or electronic mail to the addresses specified in the Agreement or such other address as may be notified by a party to the other party.
11.2 Notices will be deemed to have been given:
11.2.1 in the case of hand delivery, upon delivery to an officer or other duly authorised representative of the receiving party;
11.2.2 in the case of posting where both parties are located in Australia on the fifth Business Day following the date of posting;
11.2.3 in the case of posting where one party is located outside Australia on the tenth Business Day following the date of posting; or
11.2.4 in the case of electronic mail, when the sender of the notice sends the notice provided that:
(a) the sender’s system identifies that the notice was addressed to the correct electronic address of the intended recipient; and
(b) an answer-back or message failure notice is not received with 24 hours of sending,
provided the notice was sent before 5pm on a Business Day, otherwise the next Business Day.
12 GENERAL
12.1 This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, arrangements and understandings.
12.2 An alteration, amendment or variation of this Agreement, or any term of this agreement, must be in writing.
12.3 Each party shall do all things and execute all documents necessary to effect the transactions contemplated by this Agreement.
12.4 This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one document. Counterparts may be delivered by facsimile or email.
12.5 A party may only assign this Agreement, or a right under this Agreement, with the prior written consent of each other party.
12.6 A party’s failure or delay to exercise a power or a right does not operate as a waiver of that power or right.
12.7 The exercise of a power or right does not preclude its future exercise or the exercise of any other power or right.
12.8 No waiver of any power or right under this Agreement shall be effective unless it is in writing.
12.9 Wherever the consent or approval of a party is required pursuant to this Agreement, that party may, unless otherwise specified in this Agreement, withhold such consent or approval in its absolute discretion.
12.10 Except as otherwise provided by this Agreement, each party is responsible for its own costs in relation to the negotiation and preparation of this Agreement and all things to be done under this Agreement.
12.11 None of the provisions of this Agreement shall merge on termination, settlement or completion of this Agreement or be affected by the execution or delivery of any other instrument.
12.12 The whole or any part of this Agreement that it illegal or unenforceable will be severed and will not affect the continued operation of the remaining provision of this Agreement.
12.13 Each indemnity in this Agreement:
12.13.1 is a continuing obligation;
12.13.2 is a separate and independent obligation from the other obligations set out in this Agreement; and
12.13.3 survives the termination of this Agreement.
12.14 This Agreement is governed by and is construed in accordance with laws of Queensland, if applicable, and the Commonwealth of Australia. Each of the parties submit to the non-exclusive jurisdiction of the courts of and exercising jurisdiction in respect of Queensland.
13 DEFINITIONS
In this Agreement unless the context otherwise requires:
Acceptance means acceptance by the Customer that the Trailer has been designed, constructed and manufactured in accordance with this Agreement. Accepted and Acceptable have corresponding meanings.
Agreement means these General Terms of Agreement, Formal Instrument of Agreement, Specifications, Trailer Warranty and any Variation Confirmation.
ADR means the relevant Australian Design Rules applicable to the Trailer.
Business Day means a day on which banks are open for business, not being a Saturday or Sunday, in Brisbane Queensland.
Claim means any claim, action, proceeding, loss, damage, cost, expense or liability whatever and however arising (whether or not presently ascertained, immediate, future or contingent and includes legal costs on a full indemnity basis).
Consequential Loss means damages for:
(a) any loss beyond the normal measure of loss or loss that every plaintiff in a like situation will suffer including additional expenses incurred as a result of any event;
(b) any loss suffered by a party that cannot reasonably be considered to arise naturally from that breach or event, fact, matter or circumstance;
(c) any and all special, indirect, exemplary or punitive loss even if such loss could reasonably be considered to arise naturally from that breach or event, fact, matter or circumstance; and
(d) loss of revenue, loss of profit, loss of goodwill or loss of opportunity, even if such loss could reasonably be considered to arise naturally,
whether arising in contract, tort (including negligence) or equity or under statute.
Customer means the customer set out in the Formal Instrument of Agreement.
Defect means in relation to the Trailer, any item of design or manufacture which:
(a) does not confirm with the Specifications or ADR;
(b) has an error, defect or malfunction; or
(c) is not of an acceptable or merchantable quality.
For the avoidance of doubt, it does not include all possible design or manufacturing defects or safety warnings specifically drawn to the Customer’s attention prior to the Agreement. Defective has a corresponding meaning.
Defects Notice means a written notice from the Customer to Robuk which sets out alleged Defects of the Trailer.
Delivery means making the Trailer available for collection by the Customer at the Delivery Location.
Delivery Location means 1294 Lytton Road, Hemmant Brisbane or such other location nominated for Delivery of the Trailer by Robuk as set out in the Trailer Quotation.
Delivery Notice means a notice from Robuk to the Customer which states the proposed date for Delivery.
Deposit means that amount of the Purchase Price to be paid as a deposit, as set out in the Trailer Quotation.
Estimated Delivery Date means the date which Robuk reasonably estimates that the Trailer will be ready for Delivery, as set out in the Trailer Quotation.
Event of Default means an event described in clause 9.1.
Formal Instrument of Agreement means the formal instrument of agreement provided to the Customer.
General Terms of Agreement means these general terms of agreement.
Insolvency Event means:
(a) an administrator is appointed to a party or action is taken to make that appointment;
(b) a party ceases to carry on business;
(c) an application is made to a court for an order appointing a liquidator, or provisional liquidator in respect of a party or one of them is appointed whether or not under a court order;
(d) a receiver or a receiver and manager of property of a party is appointed whether by a court or otherwise;
(e) a party enters into a compromise or arrangement with its creditors or a class of them; or
(f) a party is or states that it is unable to pay its debts when they fall due.
Intellectual Property Rights means all intellectual property rights and know-how including copyright, trademarks, patents, designs, circuit layout rights, the right to protect confidential information, know-how and trade secrets and any application or right to apply for registration of those rights.
Maintenance Schedule means any daily and monthly checklist provided by Robuk to the Customer on Delivery of the Trailer regarding the maintenance of the Trailer.
Payment Terms means the payment terms set out in the Trailer Quotation.
Purchase Price means the purchase price for the Trailer as set out in the Trailer Quotation.
Registration means registration of the Trailer with the Queensland Department of Transport and Main Roads.
Robuk means Robuk Engineering Pty Ltd ACN 640 884 153.
Specifications means the specifications for the Trailer set out in the Trailer Quotation.
Trailer means the trailer to be designed, constructed and manufactured by Robuk for the Customer in accordance with the Trailer Quotation and any Variation Confirmation.
Trailer Quotation means the document entitled ‘Trailer Quotation’ signed or initialled by the Customer for identification purposes.
Trailer Warranty means the warranties given by Robuk in respect of the Trailer found at [insert URL] as at the date of this Agreement.
Variation means any omission, change, modification or variation to the Specifications or ADR.
Variation Confirmation means a confirmation by the Customer and accepted by Robuk to make a Variation which sets out the details of the Variation and any amendments to this Agreement, the form of which can be supplied by Robuk upon request.
Variation Proposal means a request by the Customer to make a Variation.
14 INTERPRETATION
In this Agreement unless the context otherwise requires:
14.1 a reference to this Agreement is a reference to this Agreement as amended, varied, novated, supplemented or replaced from time to time;
14.2 a reference to a party to this Agreement or any other instrument includes that party’s legal personal representatives, transferees executors, administrators, successors and permitted assigns;
14.3 headings are for convenience only and shall not affect the interpretation of this Agreement;
14.4 a provision of this document must not be construed against a party because that party was responsible for the preparation or inclusion of the provision in this Agreement;
14.5 a reference to money, dollars, or $ is a reference to the currency of Australia;
14.6 a reference to any legislation or any provision of any legislation includes:
14.6.1 all regulations, orders or instruments issued under the legislation or provision; and
14.6.2 any modification, consolidation, amendment, re-enactment, replacement or codification of such legislation or provision;
14.7 words or expressions:
14.7.1 importing the singular include the plural and vice versa;
14.7.2 importing a gender include the other genders; and
14.7.3 denoting individuals include corporations, firms, unincorporated bodies, authorities and instrumentalities;
14.8 where a word or phrase is defined or given meaning, any other part of speech or grammatical form has a corresponding meaning;
14.9 a reference to a clause number or schedule or annexure number is a reference to a clause or Schedule or Annexure of this Agreement; and
14.10 where an act would be required to be done, or a time limit or period would expire on a day which is not a Business Day, the act may be done, or the limit or period will expire, on the following Business Day.