Terms and Conditions

ATLAS HYDRAULIC PTY LTD

Terms and Conditions – Parts and Service

1. Definitions

Agreement means the Agreement between Atlas Hydraulic and the Purchaser for the supply of goods and services, comprising the relevant order and these conditions.

Atlas Hydraulic means Atlas Hydraulic Pty Ltd ABN: 40 620 711 855.

Claim means any claim made (whether in the form of an allegation, demand, suit, action or other proceeding of any kind) under or in connection with this contract or its subject matter, whether arising under contract (including under any warranty or indemnity or any other breach, actual or anticipatory), in equity, in restitution, negligence or any other tort, strict liability, under statute or otherwise at all.

Company means Atlas Hydraulic

Conditions means these terms and conditions, as amended from time to time.

Consequential Loss means all loss of actual or anticipated profit, loss of use, loss of productivity, loss of revenue, business interruption of any nature, loss of contracts, loss of opportunity, increased costs and expenses, wasted expenditure, loss arising from delay, loss by reason of shutdown or non-operation or increased cost of borrowing capital or financing, loss of business reputation or goodwill and all special, indirect and consequential losses whether caused by or contributed to by a breach of contract or statute, breach of warranty (express or implied), tort, strict liability or any other cause whatsoever.

Delivery means when the goods are picked up by a carrier or otherwise leave Atlas Hydraulic premises or as agreed in writing.

Exchange means the exchange of the purchaser’s own used part for a new, remanufactured, or used part supplied by Atlas Hydraulic.

Goods or Services (or both) collectively and severally means the parts, components, fluids, oils or other parts or services described in the attached quotation or invoice for purposes of supply by Atlas Hydraulic Pty Ltd to Purchaser.

IP means all industrial and intellectual property rights whether protectable by statute, common law or equity including without limitation, all copyright in the goods and all materials provided in connection with the goods, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, design rights (registrable or not), trademark rights (registered or not), circuit layout design rights and excluding non-assignable moral rights.

Price means the total monetary amount for the sale of the Goods or Services (excluding GST unless stated otherwise).

Purchaser means the person or entity placing an order for Goods or Services.

Services means any service or repair of specified equipment supplied under an Atlas Hydraulic service quotation or invoice.

2. Application of Conditions

2.1 Goods and Services are supplied or Exchanged, solely on the basis of these Conditions, any terms put forward by the buyer are rejected.

2.2 Terms of contract, conditions or offer in any specification, purchase order or other document submitted by the Purchaser are excluded.

2.3 Variations or additions to these Conditions are effective only if agreed in writing by Atlas Hydraulic.

2.4 The Purchaser’s request to buy Goods or Services or submission by the Purchaser of a purchase order for the Goods or Services is deemed to be an offer to purchase the Goods or Services (order) subject to these Conditions. Atlas Hydraulic may accept or reject an order in its sole discretion.

2.5 An order to purchase Goods or Services is only accepted when it is acknowledged by Atlas Hydraulic either orally or in writing or by Delivery.

2.6 Atlas Hydraulic may very these Conditions from time to time and will provide the Purchaser with replacement Conditions. The subsequent placing of an order by the Purchaser is deemed as acceptance of these Conditions.

2.7 Unless stated otherwise by Atlas Hydraulic, the Price for the Goods and Services is firm for 30 days from the original date of the quote, unless stated otherwise on the quote, or unless sooner withdrawn by Atlas Hydraulic.

3. Quotations And Price

3.1 Any quotation in relation to the Goods issued by the Company is an estimate of the cost of the Goods only and does not constitute an offer by the Company that is capable of acceptance by the Purchaser unless expressly stated to the contrary in the quotation. Any quotation may be withdrawn or altered by the Company without notice. Nothing in this Contract, or any verbal representation, shall oblige the Company to honour any quotation that has been altered or withdrawn by the Company.

3.2 If the Company does not alter or withdraw a quotation that is expressed to be capable of acceptance by the Purchaser, then it is valid for the period stated on the quotation or if no period is stated on the quotation, then it is valid for a period of 30 days from the date of the quotation. Nothing in this Contract, or any verbal representation, shall oblige the Company to extend or honour any quotation which has expired in accordance with the terms of this clause. Where the Purchaser places an Order in response to a quotation that is not expressed to be capable of acceptance by the Purchaser, then there is no contract formed until the Company accepts such Order in accordance with clause 3.1.

3.3 To the extent that an Order made by a Purchaser is inconsistent with a quotation issued by the Company, including noting additional requirements or specifications, the Company is not obliged to honour any additional requirements or specifications not included or noted in the Company’s quotation and the Company may apply reasonable additional charges as appropriate, and such additional charges shall form part of the Price.

3.4 The Price of the Goods:

(a) is the amount, confirmed by the Company, that the Purchaser is required to pay to the Company to purchase the Goods;

(b) excludes the cost of carriage;

(d) is GST exclusive.

3.5 The Price of the Goods is subject to reasonable adjustment by the Company to take into account any alteration in costs associated with the delivery of the Goods or, in the case of delivery by instalments, prior to the final delivery of the Goods. The Price of the Goods can be increased by the Company:

(a) at the Company’s sole discretion and, with written notice to the Purchaser, if exchange rate fluctuations between the date of any quotation provided to the Purchaser and the date the Company purchases imported Goods causes the cost of those Goods to increase by more than 5%; and

(b) without notice to the Purchaser if any government authority imposes any further duty, tax or fee in respect of the Goods or this Contract.

3.6 The Purchaser agrees to pay to the Company any reasonable adjustment to the Price of the Goods pursuant to clause 3.5.

3.7 Any Price concession or discount the Company provides to the Purchaser is conditional on the Purchaser’s full compliance with this Contract and shall not give rise to any expectation of any future Price concession or discount being offered to the Purchaser, and shall in no way oblige the Company to offer any future Price concession or discount to the Purchaser.

3.8 The Company may by giving notice to the Purchaser at any time up to seven (7) days before delivery increase the Price of the Goods to reflect any increase in the cost to the Seller beyond the reasonable control of the Seller. (including, without limitation, foreign exchange fluctuations, taxes and duties, provisions of any Acts, By-Law, Order or Regulation of any parliament, municipality or local authority enacted after the date of contract between the Purchaser and Company and the cost of labour, materials and other manufacturing costs).

4. Delivery

4.1 The risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods passes to the Purchaser immediately on the Goods being dispatched from Atlas Hydraulics’ premises or supplier.

4.2 For all other legal intents and purposes ownership of the Goods passes to the Purchaser on payment of the invoice in full. The Purchaser must:

(a) keep the Goods in its possession and control;

(b) keep the Goods in good repair and condition, excluding fair wear and tear;

(c) keep the Goods stored separately and marked so that the Goods are clearly and easily identifiable as Atlas Hydraulic’s property and if requested, promptly inform Atlas Hydraulic of the location of the Goods; and

(d) not sell, assign or lease the Goods or any interest in them, or permit any Security Interest charge, pledge, lien or other encumbrance to be created in relation to them.

4.3 Any period or date for delivery of Goods or provisions of Services stated by Atlas Hydraulics is intended as an estimate only and is not a contractual commitment. Atlas Hydraulics will use reasonable endeavours to meet any estimated dates for delivery of the Goods or completion of the Services.

4.4 A completed driver’s manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of the Goods invoiced.

4.5 Failure to pay an invoice in full may result in a delay in the ordering process, or Atlas Hydraulic may delay placing an order for external supply of Goods or Services until the invoice is paid in full. Alternatively, Atlas Hydraulic may at its sole discretion, delay, postpone or cancel delivery to the Purchaser of Goods or Services if the invoice has not been paid in full.

4.6 Atlas Hydraulics may, at its discretion make part delivery of the Goods or Services.

4.7 If delivery of Goods or Services is delayed, postponed or cancelled by Atlas Hydraulic, the Purchaser may be required to pay a re-stocking fee and future orders by the Purchaser may be conditional on payment of the re-stocking fee, or other penalty at the sole discretion of Atlas Hydraulic.

5. Payment

5.1 The Purchaser agrees to accept and pay for the Goods in accordance with this Contract.

5.2 Payment of any invoice issued by the Company must be made:

(a) in full by the Due Date; and

(b) in the Currency applicable to the Order to which the invoice relates.

5.3 The provisions in clause 5.2 are a condition precedent to future deliveries and services under this Contract or any other contract between the Purchaser and the Company.

5.4 Without prejudice to any other right or remedy the Company may have:

(a) it may charge the Purchaser interest on any overdue amounts payable by the Purchaser to the Company at the then prevailing penalty interest rate fixed by the Attorney General under section 2 of the Penalty Interest Rate Act 1983 (Cth) calculated daily on the amount overdue from the Due Date until payment is received in full. If no such rate exists, the Company may nominate an overdraft interest rate charged by a major Australian bank plus 2.5%;

(b) it may charge the Purchaser for any costs or expenses, including the Company’s reasonable legal costs, incurred in recovering or seeking to recover from the Purchaser, or any Guarantor, any overdue amounts payable by the Purchaser to the Company; and

(i) the Company may, at its discretion, notify the Purchaser in writing of all monies payable by the Purchaser to the Company (whether or not the Due Date in respect of those monies has passed);

(ii) if the Company notifies the Purchaser in accordance with clause 8.4(c)(i), then notwithstanding clause 8.2, the Purchaser must, within 7 days of receiving the notification, pay all monies specified in the notice (whether or not the Due Date in respect of those monies has passed) to the Company; and

(iii) the Company may at its sole discretion suspend or cancel any existing credit arrangement with the Purchaser. The Company may then reinstate any credit arrangement with the Purchaser, on the same or different terms, at any time, at its sole discretion.

5.5 The Purchaser indemnifies the Company for any and all expenses incurred by the Company in enforcing the Company’s rights against the Purchaser under this Contract or any guarantee provided by a Guarantor and will reimburse the Company as a debt due and payable for such expenses when requested to do so by the Company.

5.6 If the Purchaser fails to pay to Atlas Hydraulic all monies due under this Agreement by the due date, Atlas Hydraulic has the right and irrevocable licence from the Purchaser, to, at any time and without notice, via its representatives, enter the Purchaser’s premises and to repossess the Goods or any part of them.

5.7 The Purchaser must not withhold payment of any invoice by reasons of set off, counter claim or otherwise.

6. Personal Property Securities Act 2009 (Cth) (“PPSA”)

6.1 Unless a contrary intention appears, words or expressions used in this clause 6 that are defined in the PPS Act have the same meaning as given to them in the PPS Act.

6.2 The Purchaser agrees that this Contract constitutes a security Agreement for the purposes of the PPS Act and creates a security interest (as defined in the PPS Act) in all Goods previously supplied by the Company to the Purchaser and all future Goods supplied to the Purchaser.

6.3 The Purchaser agrees to do all such things, including providing any necessary consents, signing all necessary documents, and providing any further information, as reasonably required by the Company from time to time, to enable the Company to register a first ranking perfected security interest in respect of all Goods supplied by the Company to the Purchaser, or exercise any rights in connection with any security interest.

6.4 The Purchaser acknowledges that it shall be liable for the costs and expenses incurred by the Company in relation to the registration, maintenance, enforcement or discharge of any security interest, and must make payment to the Company for any such reasonable costs incurred by the Company on demand by the Company.

6.5 The Purchaser acknowledges that it shall assist the Company, to the extent required, in relation to the registration, maintenance, enforcement or discharge of any security interest.

6.6 Until such time as title to the Goods passes to the Purchaser, the Purchaser agrees not to register, or permit to be registered, a security Agreement in relation to the Goods in favour of a third party without the prior written consent of the Company.

6.7 The Purchaser acknowledges that it shall not, without prior written notice to the Company, change its corporate or trading name or amend any registration documentation, or act in any manner, which would adversely impact on the Company’s registered security interest.

6.8 The Company need not give any notice to the Purchaser or any other person (including a notice of verification statement) unless the notice is required to be given by the PPS Act and cannot be excluded.

6.9 The Purchaser agrees pursuant to section 115 of the PPS Act:

(a) that sections 125, 142 and 143 of the PPS Act do not apply to this Contract; and

(b) to waive its right to receive any notice, details, or other document from the Company under sections 95, 121(4), 130, 135, 132(3)(d) and 132(4) of the PPS Act.

6.10 Pursuant to section 125(3) of the PPS Act, the Company may delay disposing of, or taking action to retain, the whole or part of the collateral that it seizes under section 123 of the PPS Act, for as long as it sees fit in its absolute discretion.

7. Retention of Title

7.1 Until full payment in cleared funds is received by Atlas Hydraulics for all Goods and Services supplied by it to the Customer, as well as all other amounts owing to Atlas Hydraulics by the Customer;

(a) Title and property in all Goods remain vested in Atlas Hydraulics and do not pass to the Customer;

(b) The Customer must hold the Goods as fiduciary bailee and agent for Atlas Hydraulics;

(c) The Customer must keep the Goods separate from its goods and maintain the labelling and packaging of Atlas Hydraulics;

(d) The Customer is required to hold the proceeds of any sale of the Goods on trust for Atlas Hydraulics in a separate account, however failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee;

(e) Be and remove them, notwithstanding that they may have been attached to other Goods not the property of Atlas Hydraulics, and for this purpose the Customer irrevocably licences Atlas Hydraulics to enter such premises and also indemnifies Atlas Hydraulics from and against all costs, claims, demands or actions by any party arising from such action.

8. Warranty

8.1 For Goods not manufactured by Atlas Hydraulic the warranty shall be the current warranty provided by the manufacturer of the Goods. Atlas Hydraulic shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty. In respect of a manufacturer’s warranty, and any claim made thereunder, Atlas Hydraulic is not liable for any associated costs incurred by such claim, including but not limited to, shipping costs.

8.2 In the case of second-hand Goods, the Purchaser acknowledges that they have had full opportunity to inspect the same and accepts the same with all faults and that no warranty is given by Atlas Hydraulic as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Atlas Hydraulic shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising. Notwithstanding the foregoing, Atlas Hydraulic, in its sole discretion, may elect to offer a six (6) month warranty of second-hand Goods.

8.3 Subject to the conditions of warranty set out in Clause 8.3 & 8.5 and Schedule 1 of these conditions Atlas Hydraulic warrants that if any defect in any workmanship manufactured by Atlas Hydraulic becomes apparent and is reported to Atlas Hydraulic within three (3) months of the date of delivery (time being of the essence) then the Seller will (at the Company’s sole discretion) repair the defect or replace the workmanship.

8.4 Atlas Hydraulic’s express warranty is limited to new equipment is for a period of six (6) months, unless otherwise agreed in writing.

8.5 Unless otherwise stated by Atlas Hydraulic the warranty period for Goods and Service will be 6 months from date of invoice and will include:

(a) supply of spare parts, including complete assemblies or related hydraulic parts; or

(b) replacement of parts installed by Atlas Hydraulic for the purpose of reconditioning/remanufacturing a hydraulic pump or hydraulic motor; or

8.6 Entitlement to warranty repair or replacement of a hydraulic pump, hydraulic motor or related hydraulic parts supplied or repaired by Atlas Hydraulic will be decided at the sole and absolute discretion of Atlas Hydraulic.

8.7 The conditions applicable to the warranty given by Clause 8.3 & 8.4 are:

(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

(i) Failure on the part of the Purchaser to properly maintain any Goods; or

(ii) Failure on the part of the Purchaser to follow any instructions or guidelines provided by Atlas Hydraulic; or

(iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or

(iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

(v) Fair wear and tear, any accident or act of God.

(b) The warranty shall cease and Atlas Hydraulic shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.

(c) In respect of all claims Atlas Hydraulic shall not be liable to compensate the Purchaser for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Purchaser’s claim.

8.8 Warranty claims will be deemed invalid if the hydraulic pump or motor it relates to has been dismantled (partially or wholly), altered in any way or undergone repairs by any person or entity other than Atlas Hydraulic.

8.9 Atlas Hydraulic will be under no obligation to make repairs or investigate or attempt to diagnose any fault or perceived problem with any hydraulic pump or hydraulic motor which has been tampered with in any way, by anybody other than an Atlas Hydraulic Technician within the stated warranty period.

8.10 Atlas Hydraulic reserves the right to mark and/or seal any hydraulic pump or hydraulic motor as a means of providing evidence that the hydraulic pump or hydraulic motor has been tampered with during the warranty period. Such evidence will render the warranty as invalid and the Purchaser’s claim will be rejected.

8.11 Warranties will be voided if the Purchaser fails to comply with the following:

(a) Prior to installing any supplied or repaired hydraulic pump or hydraulic motor, it is the Purchaser’s responsibility to ensure the hydraulic tank to which the hydraulic pump or hydraulic motor is connected to is emptied, cleaned and refilled with clean hydraulic oil, of the correct type and specification, and that all filters be replaced with new ones.

(b) Atlas Hydraulic expects that any hydraulic pump or hydraulic motor repaired or supplied by Atlas Hydraulic, or for which parts have been supplied by Atlas Hydraulic, is to be installed or reinstalled by a qualified hydraulic service technician/s and that instructions in the machine’s service manual have been adhered to, in full. Service Manuals are available through the dealership of the relevant brand of machine (for example: Caterpillar, Komatsu, Case, etc.) or can be purchased online.

9. Default & Consequences of Default

9.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate per calendar month and shall accrue at such a rate after as well as before any judgement.

9.2 If the Purchaser defaults in payment of any invoice when due, the Purchaser shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own Purchaser basis and in addition all of/or the Seller’s nominees costs of collection.

9.3 Without prejudice to any other remedies the Seller may have, if at any time the Purchaser is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Purchaser and any of its other obligations under the terms and conditions. The Seller will not be liable to the Purchaser for any loss or damage the Purchaser suffers because the Seller exercised its rights under this clause.

9.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: An immediate amount of the greater of $20.00 or 1.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.

9.5 In the event that:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Purchaser will be unable to meet its payments as they fall due; or

(b) the Purchaser becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Purchaser or any asset of the Purchaser; then without prejudice to the Seller’s other remedies at law:

(i) the Seller shall be entitled to cancel all or any part of any order of the Purchaser which remains unperformed in addition to and without prejudice to any other remedies; and

(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.

10. Exchange

10.1 If the Purchaser requests the Exchange of its used part, Atlas Hydraulic may, in its sole and absolute discretion decide whether it will accept the Purchaser’s Exchange used part and if so on what terms.

10.2 The used part must be presented to Atlas Hydraulic for inspection prior to supply of the new part and Atlas Hydraulic in its sole and absolute discretion may refuse the request for Exchange, with or without inspection of the used part.

10.3 Following inspection of the used part Atlas Hydraulic will take into consideration the feasibility of returning the spare part to a condition which Atlas Hydraulic deems saleable; the amount offered to the Purchaser for the Exchange used part will reflect the cost to Atlas Hydraulic of reconditioning the Exchange used part.

10.4 If both parties are in Agreement, an Exchange invoice will be issued to the Purchaser and the transaction can proceed once the invoice is paid in full, or according to credit terms in a separate contractual Agreement.

10.5 The Purchaser warrants that it has or will have unencumbered title to any used part provided by it to Atlas Hydraulic for the purposes of an Exchange.

10.6 The Purchaser authorises Atlas Hydraulic to pay any monies given to it for the purposes of removing any encumbrance on any used part provided by the Purchaser to Atlas Hydraulic in connection with an Exchange.

11. Defects/Return Of Goods

11.1 The Purchaser shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Purchaser shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery. If the Purchaser shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

11.2 For defective Goods which the Seller has agreed in writing that the Purchaser is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:

(a) the Purchaser has complied with the provisions of clause 18.1;

(b) the Goods are returned at the Purchasers cost within seven (7) days of the delivery date

(d) the Goods are returned in as new condition as is reasonable possible in the circumstances.

11.3 The Seller may (in its discretion) accept the Goods for credit but this may incur a restocking fee as determined by the Seller from time-to-time plus any freight.

11.4 Goods specially procured or procured on indent or manufactured for the Purchaser are not returnable.

12. Force Majeure

12.1 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

13. General

13.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

13.2 All Services/Goods supplied by the Company are subject to the laws of Victoria and the Company takes no responsibility for changes in the law which affect the Services/Goods supplied.

13.3 The Company shall be under no liability whatever to the Purchaser for any indirect loss and/or expense (including loss of profit) suffered by the Purchaser arising out of a breach by the Company of these terms and conditions.

13.4 In the event of any breach of this contract by the Company the remedies of the Purchaser shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the Goods.

13.5 If GST is imposed on any supply made in accordance with this Agreement, the recipient must pay an additional amount equal to the GST payable in connection with that supply promptly following receipt of a tax invoice. Expressions used in this condition which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning when used in this Agreement.

13.6 The Company may license or sub-contract all or any part of its rights and obligations without the Purchaser’s consent.

13.7 The Company reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Company notifies the Purchaser of such change.

13.8 Atlas Hydraulic retains all right, title, interest and ownership in all IP rights in any Goods or Services provided to the Purchaser under this Agreement.

13.9 An order may only be cancelled with Atlas Hydraulic’s written consent.

13.10 The Purchaser grants to Atlas Hydraulic and its personnel, a non-exclusive and irrevocable licence to access the Goods, and to enter premises, at no cost, to enable Atlas Hydraulic to perform data retrieval functions for the purpose of monitoring component life, service intervals or machine availability of Goods.

13.11 Atlas Hydraulic will only accept return of any Goods if prior Agreement has been made with Atlas Hydraulic, if Goods are in as-new condition, in original undamaged packaging and on payment of a re-stocking fee to be determined by Atlas Hydraulic.

Schedule 1

Warranty

This Warranty forms part of and is to be read in conjunction with the Contract and Warrant Clause.

1. Definitions In This Schedule

1.1 Warranty Period means the period of six (6) months from the date of delivery of the Goods to the Purchaser.

2. Goods

2.1 Subject to clauses 3 and 4 of this Warranty, and in the absence of a third party manufacturer warranty, the Company agrees, in relation to any faulty workmanship or material defect in Goods that are purchased by the Purchaser and reported by the Purchaser to the Company during the Warranty Period, to any one or more of any the following:

(a) in the case of goods:

(i) to replace the goods or supply equivalent goods;

(ii) to repair the goods;

(iii) to pay the cost of replacing the goods or acquiring equivalent goods; or

(iv) to pay the cost of having the goods repaired; and

(b) in the case of services:

(i) to supply the services again; or

(ii) to pay the cost of having the services

(iii) supplied again.

2.2 For the avoidance of doubt, the Company has sole discretion as to any one or more of the alternatives specified in clauses 2.1(a) or 2.1(b).

2.3 This Warranty does not cover anything which is not expressly included in the Warranty.

2.4 Where a component or part of the Goods are repaired or replaced by the Company pursuant its terms and conditions, the liability of the Company will be limited to that particular component or part.

3. Exclusions

3.1 To the extent permissible by law, the Warranty does not cover:

(a) anything caused or contributed to by:

(i) Normal Wear and Tear and the gradual reduction in operating performance of the Goods;

(ii) the Company being the subject of a Force Majeure Event;

(iii) (an accident, abuse, neglect of a person other than of the Company, including any wilful, negligent or inappropriate act or omission of a person other than of the Company which occurs during transportation of Goods, the loading and/or unloading of Goods, installation of Goods, or moving of Goods;

(iv) vandalism, power outages, surges, inadequate or improper voltage or current, or use and instalment of Goods contrary to any instruction or manual;

(v) repair or modification of the Goods carried out:

(b) without the proper written consent of the Company; or

(i) any criminal, deliberate, wilful, dishonest or fraudulent act, error or omission of the Purchaser or any of its officers, employees or agents; or

(ii) any breach by the Purchaser of a law or regulatory requirement;

(d) costs of removal, reinstallation, recommissioning or shipping of the Goods;

(e) damage occurring during transportation, freight, installation of the Goods or while moving the Goods; or

(f) any defect or faulty workmanship in relation to the Goods:

(i) not notified to the Company within the Warranty Period; or

(ii) where the Purchaser continues to use the Goods after the Purchaser knew or discovered or ought reasonably to have known or discovered the defect or faulty workmanship.

4. Warranty Claims And Associated Costs

4.1 If a Purchaser wishes to lodge a claim under this Warranty in relation to the Goods then the Purchaser must notify the Company immediately and during the Warranty Period. Further information regarding the Warranty claim procedure can be obtained by contacting the Purchaser’s nearest Company Branch.

4.2 The Company may, under this Warranty, direct that the Purchaser returns the Goods to:

(a) the location from which the Goods were originally dispatched to the Purchaser; or

(b) another location, provided that the cost of returning the Goods to such a location does not exceed the cost of returning the Goods to the location from which the Goods were originally dispatched to the Purchaser.

4.3 Where the Company directs the Purchaser under clause 4.2 of this Warranty, the Purchaser must return the Goods in accordance with such direction.

4.4 The Company may at its discretion require the Purchaser to issue a purchase order with respect to additional inspection, testing and / or assessment required in order for the Company to assess a Warranty claim and the Purchaser shall be obliged to issue such documentation prior to any further inspection, testing and / or assessment being undertaken by the Company under the Warranty terms.

4.5 In the event that the Company reasonably determines that a claim is not accepted under this Warranty, the Purchaser shall be liable for any costs incurred by the Company associated with a Warranty claim, including all costs incurred by the Company in inspecting, testing and / or assessing the Goods as part of any claim, including reasonable labour costs and travel costs associated with travelling to a particular location to inspect, test and / or assess the Goods.

4.6 In the event that the Purchaser does not accept a Warranty claim, the Purchaser shall be notified of the Company’s decision and will be issued with an invoice for the costs incurred by the Company associated with a Warranty claim pursuant to clause 4.5 of this Warranty.

4.7 Where a third party manufacturer warranty applies, the Purchaser agrees to comply with any applicable warranty terms and conditions, to the extent that they contain additional warranty requirements.

4.8 The Purchaser shall be required to pay any invoice issued to the Purchaser pursuant to clause 4.6 of this Warranty by the Due Date.

4.9 The Purchaser shall indemnify the Company in respect of any and all Claims, losses, expenses and liabilities incurred by the Company arising indirectly or directly out of any Warranty claim not accepted by the Company.