Terms & Conditions
STANDARD TERMS AND CONDITIONS OF SERVICE
1. Definitions
In these Terms:
“Business Day” means Monday to Friday, excluding NSW public holidays.
“Contract IP” refers to all Intellectual Property Rights created, discovered, or coming into existence as a result of, for the purpose of, or in connection with the provision of the Works or the work under the Contract. This includes all Intellectual Property Rights in anything developed by TWE Pty Ltd (TWE) in providing the Works and any Intellectual Property Rights in Your Information provided by You to TWE.
“Do and Charge Basis” means the performance of Work by TWE:
a) on an hourly rate determined by TWE; andb) where TWE exercises its discretion on what has to be done and when it has to be completed, unless otherwise agreed by You and TWE in writing before the Work is started.
“Force Majeure” means any event or circumstance not within the control of a party and which, by the exercise of due diligence, that party is not reasonably able to prevent or overcome. This includes, but is not limited to: a) acts of God, such as earthquakes, floods, washouts, landslides, lightning, storms, and the elements;b) strikes, lockouts, bans, slowdowns, or other industrial disturbances; c) fire or explosion;d) equipment breakdown, accidents, breakages, or the necessity for making repairs and/or alterations in machinery;e) acts of enemy, wars, blockades, insurrections, riots, and civil disturbances, arrest and restraint of rulers and peoples;f) any requirement of any government or other lawful authority;g) inability to obtain suitable raw materials from usual sources of supply;h) energy shortages; ori) acts of war and/or terrorism.
“Guarantor(s)” means the persons as Guarantors in the Credit Application completed and submitted by You or as described in the Quote.
“Intellectual Property Rights” means all industrial and intellectual property rights whether protectable by statute, at common law, or in equity. This includes all copyright and similar rights which may subsist or may hereafter subsist in works or any subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registerable), rights in relation to registered or unregistered trademarks, but excludes non-assignable moral rights and similar non-assignable personal rights of authors and producers.
“Item” or “Items” includes any good that You request TWE to manufacture, or any good, plant, equipment, or chattel real that You request TWE to modify or repair for You.
“TWE” means TWE Pty Ltd ABN 22 102 247 389, its directors, officers, employees, sub-contractors, all Related Companies, and subsidiaries.
“TWE IP” means the Intellectual Property Rights that are owned or licensed by TWE which: a) exist at the date of the Contract; orb) come into existence after the date of the Contract.
“Non-Refundable Payment” means the amount of the Price that You are to pay to TWE before TWE commences to perform the Work.
“Price” means the charges, fees, and costs that TWE is to be paid for the Work as determined in accordance with clause 8.
“Quote” means the document headed Quote issued by TWE to You for the manufacture of the Works.
“Terms” means these terms and conditions of contract as they appear at www.twe.net.au.
“Time Frame” means the estimated period from commencing Work concerning an Item as specified in the Quote, and if the Work is on a Do and Charge Basis, such time as TWE requires to complete the Work unless You and TWE in writing have agreed to a specified period of time that the Work is to be completed.
“Work” or “Works” means the manufacture, modification, or repair of an Item or product, relying upon Your Information, by TWE described in a Quote, or on a Do and Charge Basis.
“You” means the person, persons, or entity whose details are provided in the Quote or Credit Application.
2. Services
- TWE Pty Ltd agrees to provide welding and fabrication services as specified in the Quote or agreement. All services will be performed in a professional and workmanlike manner.
3. Estimates and Quotes
- All estimates and quotes provided by TWE Pty Ltd are valid for 14 days from the date of issue.
- Any changes to the scope of work may result in additional charges.
- Quotes are based on the information provided by You. Any inaccuracies or changes in the information may affect the final cost.
4. Payment Terms
- A Non-Refundable Payment is required upon acceptance of the Quote.
- The remaining balance is due upon completion of the services.
- Late payments may incur a fee of 5% per month on the outstanding amount.
- Payment method accepted is that of bank transfer only.
5. Confidentiality
- Both parties agree to keep all information related to the services confidential. This includes, but is not limited to, business strategies, processes, and proprietary information.
6. Warranty and Liability
- TWE Pty Ltd provides a warranty for the services rendered for a period of 1 month from the date of completion.
- The warranty covers defects in workmanship but does not cover damage caused by misuse, external factors, or normal wear and tear.
- TWE Pty Ltd’s liability is limited to the cost of the services provided. TWE is not liable for any indirect or consequential losses.
7. Intellectual Property
- All Contract IP created during the provision of the Works remains the property of TWE Pty Ltd unless otherwise agreed in writing.
- You grant TWE a non-exclusive, royalty-free license to use Your Information and any Intellectual Property Rights therein for the purpose of providing the Works.
8. Force Majeure
- TWE Pty Ltd is not liable for any failure to perform its obligations under these Terms due to Force Majeure events. If a Force Majeure event occurs, TWE will notify You as soon as practicable and take reasonable steps to minimize any delay.
9. Termination
- Either party may terminate the agreement with 7 days’ written notice.
- In the event of termination, You are responsible for payment for all services rendered up to the date of termination.
- TWE may terminate the agreement immediately if You breach any term within these Terms.
10. Governing Law
- These terms and conditions are governed by the laws of New South Wales, Australia. Any disputes arising from these terms will be subject to the jurisdiction of the courts of New South Wales.
11. Amendments
- TWE Pty Ltd reserves the right to amend these terms and conditions at any time. Any changes will be communicated to You in writing.
12. Dispute Resolution
- In the event of a dispute arising out of or in connection with these Terms, the parties agree to attempt to resolve the dispute through good faith negotiations.
- If the dispute cannot be resolved through negotiations within 30 days, either party may refer the dispute to mediation. The mediator will be appointed by agreement between the parties.
- Each party will bear its own costs of the mediation, and the costs of the mediator will be shared equally.
13. Indemnity
- You agree to indemnify TWE Pty Ltd, its directors, officers, employees, and subcontractors from and against any claims, liabilities, damages, losses, and expenses arising out of or in connection with the provision of the Works, except to the extent caused by the negligence or wilful misconduct of TWE.
14. Entire Agreement
- These Terms, together with the Quote and any other documents expressly incorporated by reference, constitute the entire agreement between the parties and supersede all prior agreements, understandings, and representations.
15. Severability
- If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions will continue in full force and effect.
16. Waiver
- No waiver of any breach of these Terms will be deemed a waiver of any subsequent breach. No waiver will be effective unless in writing and signed by the party granting the waiver.
17. Notices
- Any notices required or permitted to be given under these Terms must be in writing and delivered to the other party by hand, email, or registered mail at the address specified in the Quote or as otherwise notified in writing.
18. Assignment
- You may not assign or transfer any of your rights or obligations under these Terms without the prior written consent of TWE Pty Ltd.
19. Subcontracting
- TWE Pty Ltd reserves the right to subcontract any part of the Works to a third party. TWE will remain responsible for the performance of the subcontracted Works.
20. Insurance
- TWE Pty Ltd will maintain appropriate insurance coverage for the duration of the Works, including public liability and workers’ compensation insurance. You are responsible for ensuring that any items provided to TWE for modification or repair are adequately insured.
21. Health and Safety
- Both parties agree to comply with all applicable health and safety laws and regulations. You must inform TWE of any known hazards related to the Items or the site where the Works are to be performed.
22. Environmental Compliance
- TWE Pty Ltd is committed to environmental sustainability and will comply with all applicable environmental laws and regulations. You agree to provide any necessary information or assistance to help TWE comply with these requirements.
23. Customer Responsibilities
- You must provide accurate and complete information regarding the Items and the scope of the Works.
- If work is to be performed on a non-TWE premises, You must ensure that the site where the Works are to be performed is safe and accessible.
- You must cooperate with TWE and provide any necessary assistance to facilitate the timely completion of the Works.
24. Limitation of Liability
- To the maximum extent permitted by law, TWE Pty Ltd’s liability for any claim arising out of or in connection with these Terms or the provision of the Works is limited to the amount paid by You for the Works. TWE is not liable for any indirect, incidental, or consequential damages.
25. Feedback and Complaints
- TWE Pty Ltd values customer feedback and aims to resolve any complaints promptly and fairly. If you have any concerns or complaints about the Works, please contact us at info@twe.net.au
STANDARD TERMS AND CONDITIONS - SUPPLIER
General
These Terms and Conditions apply to the order for goods (“Goods”) or services (“Services”) placed by TWE Pty Ltd (TWE) as described in the attached purchase order (“Purchase Order”) with the supplier of the Goods or Services (“Supplier”).
They are to be read as in addition to any terms specified by TWE in the Purchase Order and/or any attachment to it that is expressly incorporated in writing.
No other Terms and Conditions apply to this Purchase Order or to the Goods or Services under any circumstances except where:
They are to be read as in addition to any terms specified by TWE in the Purchase Order and/or any attachment to it that is expressly incorporated in writing.
No other Terms and Conditions apply to this Purchase Order or to the Goods or Services under any circumstances except where:
- TWE first provides its agreement in writing; or
- these terms are replaced by a longer form agreement on TWE’s Terms and Conditions in which case the terms of that agreement will apply between the parties.
No amendments to these Terms and Conditions will be binding on the parties unless approved in writing by a TWE representative with the actual delegated authority to approve any such amendments as notified by TWE from time to time.
Offer and Acceptance
The Supplier is taken to have accepted a Purchase Order if it notifies TWE that it accepts the Purchase Order or delivers the Goods and/or Services described in the Purchase Order.
If the Supplier is unable or unwilling to accept the Purchase Order, it must notify TWE promptly. It may propose a variation to the Purchase Order, or offer other Goods and/or Services in substitution, but any such variation or substitution must be approved by the TWE Procurement Team in writing before delivery.
The Purchase Order once accepted, combined with these Terms and Conditions and any terms and conditions in the Purchase Order and/or any attachment expressly incorporated in writing, will form a binding agreement between the parties (“Agreement”).
If the Supplier is unable or unwilling to accept the Purchase Order, it must notify TWE promptly. It may propose a variation to the Purchase Order, or offer other Goods and/or Services in substitution, but any such variation or substitution must be approved by the TWE Procurement Team in writing before delivery.
The Purchase Order once accepted, combined with these Terms and Conditions and any terms and conditions in the Purchase Order and/or any attachment expressly incorporated in writing, will form a binding agreement between the parties (“Agreement”).
Cancellation and Changes
TWE may at any time before delivery change or cancel the Purchase Order.
If the Supplier has already incurred expense in arranging for the order or delivery of the Goods and/or Services specified in the first Purchase Order, TWE may pay the Supplier’s reasonable and demonstrable costs or expenses incurred. The Supplier must mitigate any such costs or expenses.
If TWE changes the Purchase Order and any change causes an increase or decrease in the cost of the Goods and/or Services, or time required to deliver the Goods and/or Services, an equitable adjustment must be made to the Fees which is appropriate to the circumstances.
If the Supplier has already incurred expense in arranging for the order or delivery of the Goods and/or Services specified in the first Purchase Order, TWE may pay the Supplier’s reasonable and demonstrable costs or expenses incurred. The Supplier must mitigate any such costs or expenses.
If TWE changes the Purchase Order and any change causes an increase or decrease in the cost of the Goods and/or Services, or time required to deliver the Goods and/or Services, an equitable adjustment must be made to the Fees which is appropriate to the circumstances.
Delivery, Acceptance and Title
Unless otherwise specified as such in the Purchase Order, time will be of the essence with respect to the Supplier’s delivery obligations under this Agreement. The Supplier must deliver the Goods and Services as set out in the Purchase Order in accordance with the time periods for delivery specified in the Purchase Order.
Payment of any invoice by TWE will not be deemed acceptance of any Goods and/or Services, but rather such Goods and/or Services will be subject to a 4-month period of inspection, testing, acceptance or rejection by TWE. If TWE rejects any Goods and/or Services within such 4-month period, an equitable adjustment must be made to the Fees to reflect non-delivery (the Supplier must refund TWE accordingly). Title and risk in the Goods will pass to TWE when they are delivered to TWE.
Payment of any invoice by TWE will not be deemed acceptance of any Goods and/or Services, but rather such Goods and/or Services will be subject to a 4-month period of inspection, testing, acceptance or rejection by TWE. If TWE rejects any Goods and/or Services within such 4-month period, an equitable adjustment must be made to the Fees to reflect non-delivery (the Supplier must refund TWE accordingly). Title and risk in the Goods will pass to TWE when they are delivered to TWE.
Sub-contracting
Except as expressly provided in the Purchase Order, the Supplier may not sub- contract any obligations under this Agreement without the prior written consent of TWE.
Where the Supplier sub-contracts any of its obligations under this Agreement, the Supplier remains liable for the carrying out and completion of those obligations.
Where the Supplier sub-contracts any of its obligations under this Agreement, the Supplier remains liable for the carrying out and completion of those obligations.
Fees and Invoices
In consideration for the provision of Goods and/or Services under this Agreement, TWE agrees to pay to the Supplier the fees specified in the Purchase Order (“Fees”).
Unless otherwise specified in the Purchase Order, TWE agrees to pay the Supplier the Fees within 30 days end of month of receipt and acceptance of an invoice by TWE (such invoice to be accompanied by such reasonable information as TWE may require). TWE may withhold any disputed portion of the Fees until the dispute is resolved.
If GST is payable in connection with the Goods and/or Services to be supplied under this Agreement, then the Supplier irrevocably warrants and agrees that the Fees payable to it under this Agreement and specified in the Purchase Order is the GST inclusive price of those Goods and/or Services unless otherwise agreed in the Purchase Order.
Unless otherwise specified in the Purchase Order, TWE agrees to pay the Supplier the Fees within 30 days end of month of receipt and acceptance of an invoice by TWE (such invoice to be accompanied by such reasonable information as TWE may require). TWE may withhold any disputed portion of the Fees until the dispute is resolved.
If GST is payable in connection with the Goods and/or Services to be supplied under this Agreement, then the Supplier irrevocably warrants and agrees that the Fees payable to it under this Agreement and specified in the Purchase Order is the GST inclusive price of those Goods and/or Services unless otherwise agreed in the Purchase Order.
Indemnity, Insurance and Warranties
The Supplier indemnifies TWE against all Losses it directly or indirectly sustains or incurs as a result of:
- Any negligent, unlawful or wilful act or omission of the Supplier, Supplier personnel or Supplier subcontractors;
- Any infringement or moral rights of a third party arising out of its receipt or use of the Goods and / or Services;
- Death or personal injury of any person to the extent caused by the Supplier;
- Property damage to the extent caused by the Supplier;
- any breach by the Supplier of clause 8.
The liability of a party for breach of this Agreement, or in tort, or for any other common law or statutory cause of action arising out of the operation of this Agreement, will be determined under the relevant law in Australia that is recognised, and would be applied, by the High Court of Australia.
The Supplier must have and maintain Public and Products liability insurance and professional indemnity insurance (in each case $10 million for each occurrence as a minimum) throughout the term of this Agreement including the following contractual endorsements:
The Supplier must have and maintain Public and Products liability insurance and professional indemnity insurance (in each case $10 million for each occurrence as a minimum) throughout the term of this Agreement including the following contractual endorsements:
- a waiver of subrogation; and
- contractual liability, and the Supplier must ensure that any sub- contractor engaged by it is insured to a level commensurate with the insurance obligations of the Supplier under this Agreement.
The Supplier must provide TWE with a certificate of currency from its insurance broker certifying that it has the insurance required under this Agreement.
The Supplier represents and warrants that:
The Supplier represents and warrants that:
- it has all rights, title, licences, interests and property necessary to provide the Goods and/or perform the Services;
- the Supplier personnel will have all necessary experience, skill, knowledge and competence to perform the Services, and the Services will be performed in accordance with good industry practice;
- the Goods and/or Services will be fit for the purposes intended;
- if applicable, the Goods and/or Services will meet any agreed design and performance criteria and correspond with any sample;
- the Goods will be complete, accurate and of merchantable quality;
- it is entitled to grant any licence of IPRs to TWE under this Agreement;
- TWE’s use of any Background IPRs and/or Project IPRs in the Goods and/or Services (“Warranted Materials”) will not infringe the IPRs of any person; and
- it will supply to TWE in English all complete, accurate and up-to-date documentation associated with the use of the Goods and/or Services.
If a third-party claims, or TWE reasonably believes that a third party is likely to claim, that all or part of the Warranted Materials infringe their IPRs or breach their confidence, the Supplier must, in addition to the indemnity under this Agreement and to any other rights that TWE may have against it, promptly, at the Supplier's expense:
- use its best efforts to secure the rights for TWE to continue to use the affected Warranted Materials free of any claim or liability for infringement; or
- replace or modify the affected Warranted Materials so that the Warranted Materials or the use of them does not infringe the IPRs of any other person without any degradation of the performance or quality of the affected Warranted Materials.
Intellectual Property Rights and Confidential Information
Subject to clause 8.2, all rights, title and interest in any IPRs created in providing the Goods and/or Services (“Project IPRs”) will be owned by TWE, and to the extent needed, the Supplier hereby assigns all rights, title and interest it may have now or in the future in those Project IPRs to TWE.
The IPRs owned by a party prior to the date of this Agreement (“Background IPRs”) remain with the contributing party.
The Supplier grants to TWE a perpetual, irrevocable, royalty-free worldwide, non-exclusive licence (including a right of sub- licence) to use, reproduce, modify, publish, adapt, or communicate to the public and exploit the Supplier’s Background IPRs in conjunction with the Goods and/or Services, and the Project IPRs. The Supplier must provide TWE will all necessary documentation and materials to take advantage of this licence.
Each party (‘recipient’) must keep any Confidential Information disclosed to it confidential and must not deal with it in any way that might prejudice its confidentiality. These obligations continue indefinitely beyond the end of this Agreement, but do not extend to disclosures:
The IPRs owned by a party prior to the date of this Agreement (“Background IPRs”) remain with the contributing party.
The Supplier grants to TWE a perpetual, irrevocable, royalty-free worldwide, non-exclusive licence (including a right of sub- licence) to use, reproduce, modify, publish, adapt, or communicate to the public and exploit the Supplier’s Background IPRs in conjunction with the Goods and/or Services, and the Project IPRs. The Supplier must provide TWE will all necessary documentation and materials to take advantage of this licence.
Each party (‘recipient’) must keep any Confidential Information disclosed to it confidential and must not deal with it in any way that might prejudice its confidentiality. These obligations continue indefinitely beyond the end of this Agreement, but do not extend to disclosures:
- required by law (including under the Government Information (Public Access) Act 2009); and
- to a recipient’s officers or employees:
- who have a need to know for the purposes of this Agreement (but only to the extent that each has a need to know); and
- before disclosure, have been directed by the recipient to keep that Confidential Information confidential.
The Supplier must comply with, carry out and discharge the obligations contained in the information privacy principles set out in sections 8 to 19 of the Privacy and Personal Information Act 1998 (NSW) as if it were TWE carrying out and discharging those obligations. The Supplier must notify TWE as soon as possible upon it becoming aware of a breach of these obligations.
Miscellaneous
TWE may terminate this Agreement by written notice to the Supplier:
- if the Supplier breaches a term of this Agreement and fails to remedy the breach within 14 days after receiving notice requiring to do so (or the Supplier breaches a term of this Agreement which is not capable of remedy); or
- if the Supplier is or becomes subject to proceedings which may result in the Supplier becoming bankrupted, wound up, under voluntary administration or subject to the control of a receiver or receiver and manager.
This Agreement is governed by the laws of New South Wales.
Each party agrees to execute such agreements, deeds and documents and do or cause to be executed or done all such acts and things as may be reasonably necessary to give effect to this Agreement. The Supplier agrees to cooperate and work with third party suppliers of TWE to the extent necessary to give effect to this Agreement.
TWE reserves the right to retain other persons or entities to supply the Goods and/or Services, including but not limited to any part of the Goods and/or Services.
The Supplier may only assign its rights or novate its rights and obligations under this Agreement with the prior written consent of TWE.
A provision of this Agreement or a right created under it may not be waived or varied except in writing, signed by the party or parties intended to be bound. A failure of a party to exercise a right arising out of this Agreement does not constitute a waiver of that right.
The Supplier must comply with any applicable TWE policies and procedures as notified by TWE to the Supplier from time to time.
If required to do so whether under the Freedom of Information Amendment Act 2006 or otherwise, the Supplier agrees that TWE has the right to publish details of this Agreement and/or the Agreement itself in the manner set out in the applicable requirements.
If there is an inconsistency between a provision of:
Each party agrees to execute such agreements, deeds and documents and do or cause to be executed or done all such acts and things as may be reasonably necessary to give effect to this Agreement. The Supplier agrees to cooperate and work with third party suppliers of TWE to the extent necessary to give effect to this Agreement.
TWE reserves the right to retain other persons or entities to supply the Goods and/or Services, including but not limited to any part of the Goods and/or Services.
The Supplier may only assign its rights or novate its rights and obligations under this Agreement with the prior written consent of TWE.
A provision of this Agreement or a right created under it may not be waived or varied except in writing, signed by the party or parties intended to be bound. A failure of a party to exercise a right arising out of this Agreement does not constitute a waiver of that right.
The Supplier must comply with any applicable TWE policies and procedures as notified by TWE to the Supplier from time to time.
If required to do so whether under the Freedom of Information Amendment Act 2006 or otherwise, the Supplier agrees that TWE has the right to publish details of this Agreement and/or the Agreement itself in the manner set out in the applicable requirements.
If there is an inconsistency between a provision of:
- a longer form contract entered into between the Supplier and TWE for the Goods and/or Services described under the Purchase Order;
- these Terms and Conditions;
- any Terms and Conditions added to the Purchase Order;
- any annexures or attachments to the Purchase Order,
then the first-mentioned terms shall prevail in the order set out.
Unless the contrary intention appears, in this Agreement, Confidential Information means all data and/or information exchanged between the parties for the purposes of this Agreement before, on or after the date of this Agreement (including the terms of this Agreement) relating to the operations, business, research and technology of the disclosing party, but not including any information which:
Unless the contrary intention appears, in this Agreement, Confidential Information means all data and/or information exchanged between the parties for the purposes of this Agreement before, on or after the date of this Agreement (including the terms of this Agreement) relating to the operations, business, research and technology of the disclosing party, but not including any information which:
- is publicly available at the date of this Agreement;
- becomes publicly available subsequent to the date of this Agreement without breach of this Agreement;
- a party obtained from a third party without breach by that third party of any obligation of confidence concerning that Confidential Information; or
- was already in the party’s possession (as evidenced by written records) when provided by or on behalf of the other party.
IPRs means all registered and unregistered rights in relation to the present and future copyright, trademarks, designs, know-how, patents, confidential information and other intellectual property as defined in article 2 of the Convention establishing the World Intellectual Property Organisation 1967.
Losses means actions, claims, liabilities, expenses, losses, damages and costs (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party) and consequential and indirect losses and damages including those arising out of any third-party claim.
In this Agreement:
Losses means actions, claims, liabilities, expenses, losses, damages and costs (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party) and consequential and indirect losses and damages including those arising out of any third-party claim.
In this Agreement:
- references to the singular includes the plural and vice versa; and
- references to person or individuals include that person’s successors, administrators, executors and assigns and a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association, or any government agency.