1. In these Terms and Conditions:
(a) “Goods” means any goods of the Customer which the Repairer has agreed to repair; (b) “Manufacturer” means the maker or makers of the Goods (or any part of the Goods) sold by the Repairer; (c) “Customer” means the person, firm or corporation for whom the repairs are undertaken; (d) “Repairer” means KONE Elevators Pty Ltd A.C.N. 000 142 423; (e) “Contract” means the contract for repair of goods constituted by acceptance of the Customer’s order by the Repairer and the Repairer’s quotation or tender; (f) “GST” means a goods and services tax or similar value added tax.
2. These Terms and Conditions shall apply to all Contracts for repair of Goods by the Repairer and shall prevail over any conflicting conditions presented by the Customer. Variations of these Terms and Conditions to be enforceable must be in writing and signed by Repairer and Customer’s representative.
3. A quotation is open for acceptance by the Customer in writing within thirty (30) days after the date of the quotation or within such further time as the Repairer may agree in writing. If not accepted, it will be deemed to have been withdrawn.
4. Any date quoted for completion of the repair is estimated and the Repairer will not be liable to the Customer for any liquidated or consequential damages whatsoever. Where the Repairer is unable to repair the Goods because of theft, accidents to machinery, differences with workmen, strikes, lock-outs, breakdowns, labour shortages, fires, floods, volcanic eruption, tsunami, snow storm, cyclone or other extreme weather condition, act of God, priorities required or requested by any government or agencies thereof, delays in transportation, lack of transportation facilities or restrictions imposed by any law or any cause beyond the control of the Repairer, then the estimated date for completion of the repair shall be extended until the cessation of the effect of such matter or matters.
5. The Customer shall indemnify and save the Repairer from the following:
(a) all claims, demands, penalties, suits, costs, charges, losses, judgements and expenses to which the Repairer may become wholly or partially liable through any work required to be done by the Repairer or Goods or material to be supplied by the Repairer in accordance with the Customer’s specifications, orders or otherwise and involving any infringement or alleged infringement of any patent, registered design, copyright or trademark;
(b) all claims for loss, damage, death or injury sustained by the Repairer, its employees or any person whomsoever by reason of any defect in design, material, manufacture or workmanship of the Goods, whether the same be caused by the sole negligence of the Repairer or otherwise;
(c) all claims for loss, damage, death or injury arising from the existence of defects in machinery or equipment used by the Repairer, its employees, agents and contractors as are not notified to the Repairer or from the operation of any equipment, machine or any part thereof or from any combination of both causes;
(d) all claims for loss, damage, death or injury occasioned to or suffered by the Customer, its employees, agents or contractors arising from the performance of any work by the Repairer, its employees, agents or contractors on the Customer’s premises or any other premises or property.
6. The Repairer remains the owner of all new and existing intellectual property rights used in or created under the Contract however the Repairer grants the Customer an irrevocable, non-exclusive, perpetual, transferable and royalty-free license to use any copyrighted works for all reasonable purposes contemplated by the Contract.
7. The Repairer may cancel the Contract or suspend or continue delivery hereunder at the Repairer’s discretion and the Repairer reserves all rights to recover any loss or damage consequent upon any such cancellation or suspension due to any of the following:
(a) in the case of death, incapacity, bankruptcy or liquidation of the Customer; (b) suspension of payment; (c) the making of any agreement with creditors on the part of the Customer; (d) failure to pay the Repairer’s tax invoice(s) punctually; (e) if the Customer rejects any delivery; or (f) if a receiver is appointed in respect of the Customer’s business or assets.
8. Payment shall be effected against the Repairer’s progress claims in the following way:
(a) 50% of the total price (including any variations) as the first progress payment at the time of placement of the order with the balance when the Repairer informs the Customer that the materials to complete the repair are scheduled to be delivered to the Customer.
(b) The Repairer retains title in the goods which are the subject of the Contract until such time as the Repairer receives 100% of the payment for those goods.
(c) Payment must be made within 7 days on approved credit accounts, otherwise nett cash in accordance with 11(a). The Customer is not entitled to withhold payment or make any deduction from the price in respect of any set off our counter claim.
9. In the case of services which are supplied by the Repairer hereunder to a person or corporation (referred to in this condition as the “Consumer”) who or which is a consumer within the meaning of the Trade Practices Act 1974:
(a) except as for any other conditions or warranties issued in writing by the Repairer and except for those conditions and warranties implied by the Trade Practices Act or other sale of goods or consumer protection legislation which may not be excluded, the Consumer agrees that it has not relied on any inducement, representation or statement made by or on behalf of the Repairer in requiring the services and there are no implied conditions or warranties herein or collateral contracts in connection herewith (except such as may be in writing and signed by duly authorised representatives of the Repairer);
(b) to the extent that the services which are the subject of these provisions are services of a kind not ordinarily acquired for personal, domestic or household use or consumption (within the meaning of the Trade Practices Act) the liability of the Repairer to the Consumer for breach of any warranty or condition (other than a warranty or condition implied by Section 69 of the Trade Practices Act) or for breach of any duty of care shall in all cases be limited, at the option of the Repairer, to the supply of the services again or the payment of the cost of having the services supplied again and (without limiting the generality of the foregoing) shall not include any liability in respect of or arising out of or in connection with any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred as a result of such breach; and
10. In the case of services which are supplied by the Repairer hereunder to a person or corporation (referred to in this condition as the “Customer”) who or which is not a consumer within the meaning of the Trade Practices Act 1974:
(a) except as provided herein, the Customer agrees that it has not relied on any inducement, representation or statement made by or on behalf of the Repairer in requiring the services and that there are no implied conditions or warranties herein and no collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of the Repairer);
(b) any claim for defective Goods or workmanship must be made in writing to the Repairer within seventy-two (72) hours after delivery. The Goods in respect of which any such claim is made shall be preserved intact as delivered for a period of fourteen (14) days after such notice is given within which time the Repairer shall have the right to attend and inspect the same. Any breach of this condition shall disentitle the Customer to any consideration of such claim. The Repairer shall not be liable to make good any expenditure, damages and/or loss (including loss of profit for downtime) arising out of any use or dealing with any Goods repaired pursuant to this contract, howsoever such expenditure, damage or loss shall arise and whether from any defect in the Goods or otherwise howsoever, the Repairer’s liability shall be strictly limited to further repair of any such goods on such goods being returned to the Repairer; and
(c) the Repairer shall not be liable to the Customer for any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the Customer.
11. (a) Goods delivered to the Repairer remain at the Customer’s risk pending redelivery by the Repairer to the Customer.
(b) The Customer transfers title to the Repairer of any parts or componentry of the Goods which in the Repairer’s opinion is no longer necessary for the operation of the Goods.
12. The Repairer reserves the right to retain the Goods until payment for providing its service or any other consequential expenses has been received by the Repairer.
13. The Contract shall be construed according to the laws of the jurisdiction in which the service is provided and the parties accept the jurisdiction of courts exercising the applicable jurisdiction.
14. The Repairer warrants the work in the Contract for 90 days.
15. The Customer must provide the Repairer with access during the Repairer’s working hours of 7.30AM to 3.30pm Mondays to Fridays (excluding public holidays) to the Goods for such duration as the Repairer reasonably requests. The Customer’s request to work beyond those hours is at the Repairer’s discretion and if agreed will be claimed as a variation.
16. The Customer warrants that it will provided uninterrupted and unimpeded access for the Repairer to complete the Repair in accordance with the quotation.