In these conditions:
“NEM” means the entity of NEM Group (ACN 079 611 626) or its trading entities
NEM Welding Services and Townsville Laser Cutting.
“Customer” means any person or corporation who has requested goods and / so services.
“Goods” means the products, and if any, services for work and labour done, hire charges, fees, service charges, repairs, materials, insurance charges of whatever nature, associated with the supply and manufacture, construction, repair of the goods supplied by the Customer.
“PPSA” means the Personal Property Securities Act 2009.
2. NEM’s Conditions Prevail
These conditions (which can only be waived in writing signed by NEM) prevail over all conditions of the Customer’s order or other documents to the extent of any inconsistency.
Nothing in these conditions shall be read or applied so as to exclude, restrict or modify any condition, warranty, guarantee, right or remedy implied by law and which by law cannot be excluded, restricted or modified.
Any estimate made by NEM is not an offer to sell and no order given in pursuance of any estimate or quotation shall bind NEM until accepted by it in writing or by the commencement of supply of the goods and / or service subject of the order.
4. Starting Work
Work cannot be started until NEM receives any and all necessary approvals, such as DIM Checks, Plans, Estimate, Quote or Contract Acceptance. NEM will not be held responsible for misinterpretation of customer’s verbal instructions. NEM will endeavour to make any requested late alternations to orders but this may not be possible due to circumstances beyond its control.
5. Payment / Account Terms
The Customer must pay NEM within the terms stated on the quote or invoice. Purchase must be on a cash with order basis, following which NEM will issue a tax invoice to the customer. However, if any approved account has been established, payment must be received under the terms stated on the invoice.
In the event that NEM grants to the customer time pay for any goods supplied then such supply shall not amount to a waiver by NEM of any of the provisions of these terms nor be construed or be taken either directly or by implication as a granting by NEM of credit facilities to the customer and no credit facilities shall be granted unless agreed in writing by NEM.
If NEM does not receive forwarding instructions sufficient to enable it to dispatch the goods within 7 days then the customer shall be deemed to have taken delivery of the goods and the terms of payment shall apply from such date. The customer shall be liable for storage charges payable monthly on demand and the storage of the goods shall be at the customer’s risk.
Should the customer default in payment of any monies due under this agreement, then all monies due to NEM shall be immediately become due and payable and shall be paid by the customer within seven (7) days of the date of demand and NEM shall be entitled to charge interest at a rate of 10% per annum on all overdue accounts from the date of due payment until the date of actual payment.
Any expenses, costs of disbursements incurred by NEM in recovering any outstanding monies including debt collection agency fees, solicitor’s fees shall be paid by the customer.
If the customer makes default in any payment, commits an act of bankruptcy, has managers or receivers appointed or enters into liquidation, NEM may at its option withhold further deliveries, cancel any contract and / or terminate any credit arrangement without notice and without prejudice to NEM’s rights hereunder.
6. Customer Supplied Materials
To provide a very high level of service we ask that our customers provide good quality raw materials, as well as good quality images, logo files and drawings. All materials supplied to NEM by or on behalf of the Customer shall be held at the Customers risk. All material supplied by the Customer for the production of the Customer's work may be subject to a charge for handling and storage as determined by NEM. If any change or correction is necessary in order to supply properly finished work, the additional work shall be at the Customer's expense. Responsibility shall not be accepted for sub-standard work caused by defects or unsuitability of such materials. Customer covenants that any customer's design produced for use by NEM does not infringe any trade mark, copyright, or other property right of another entity and shall indemnify NEM in connection herewith.
7. Raw Material Certification
Material Traceability Certifications are available only on Special Orders at an additional charge.
Orders and speculative work of an experimental nature prepared at the Customer's request shall be considered an order and charged for accordingly. Sketches, dummies and designs submitted by NEM on a speculative basis shall remain NEM's property and no use shall be made nor any idea or technical knowledge obtained there from be used without the agreement of NEM in writing.
The liability of NEM for goods manufactured by it, is limited to making good any defects by repairing the defects or at NEM's option by replacement within a period of not exceeding twelve months after the goods have been delivered so long as:
All conditions specified in the contact, tender or quotation have been complied with
- the defects have arisen solely from faulty materials supplied by NEM or workmanship
- the goods have not been altered or received maltreatment, inattention, or interference
- the defective goods are promptly returned free of costs to the NEM.
Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to the merchantability, description, quality, suitability or fitness of the goods for any purpose as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. NEM is not liable for physical or financial injury, loss or damage or for the consequential loss or damage of any kind arising out of the supply, layout assembly, installation or operation of the goods or arising out of the NEM's negligence or in any way whatsoever.
All proposals, ideas, concepts, design work, drawings, computer files, scans, artwork or other items conceptualised, produced or created by NEM remain the property of NEM. Title in the goods delivered remains with NEM until NEM has received payment in full of all money owing by the Customer and if payment is not made by the due date NEM shall, without prejudice to any other remedies available to it, be entitled to retake possession of the goods and hold them until payment in full has been received or to resell the goods and to recover the deficiency on resale plus costs of repossession from the customer. For so long as title in the goods remains with NEM, the customer will hold the goods as bailee for NEM, and if the customer sells the goods, the proceeds of sale thereof are held on trust for NEM, and if payment for the goods is not made on a due date, NEM or its authorised agents have the right to enter the Customer’s premises or other premises in which the goods are located to take possession of the goods.
12. PPSA (Personal Property Securities Act 2009)
The Customer acknowledges and agrees that NEM may apply to register a security interest in the goods at any time before or after delivery of the Goods. The Customer waives their right under s157 of the PPSA to receive notice of any verification of the registration. If the Customer defaults in the performance of any obligation owed to supply Goods to the Customer, NEM may enforce its security interest in any Goods by excising all or any of its rights under these Conditions or the PPSA. To the maximum extent permitted by law, the Customer and NEM agree that the following provisions of the PPSA do not apply to the enforcement by NEM of its security interest in the Goods: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143. The Customer and NEM agree not to disclose information of the kind mentioned in s275(1) of the PPSA except in circumstances required by sections 275(7)(b)-(e) of the PPSA. The Customer must promptly do anything required by NEM to ensure that NEM’s security interest is a perfected security interest and has priority over all other security interests in the Goods.
All freight from NEM to the Customer is at the Customer’s expense. NEM will be under no obligation to insure goods in transit and the Customer will bear all risks with respect to the goods during transit. NEM shall not be responsible for any delay, default, loss or damage due to any industrial disputes, accidents, act of God, wars, equipment failure or mischievous damage or other causes beyond NEM's control. In particular NEM shall not be liable for any failure to deliver at the agreed time or at all should any of the above make this impossible including shortage of labour or materials or in other similar or dissimilar contingency beyond NEM's control interfering with the procurement of materials or with the production, delivery or acceptance of goods.
Any claims regarding visible defects or non compliance must be formulated in writing and forwarded to NEM within 30 days of the date such Goods were shipped or accepted from NEM.
15. Use of Products
No guarantee shall be given or implied that the goods supplied at the Customer's instructions or designed by the NEM to those instructions are suitable for specific market requirements.
16. Order Cancellations
Cancellation of orders will not be accepted if material has been purchased specially for a customer. Cancellation of all other orders will be subject to a discretionary charge of up to 40% of the value of the order. Cancellation of orders will not be accepted if the order has been committed for dispatch.
NEM reserves the right to sub-contract the production, manufacture, supply and installation of the whole or any part of the Goods supplied.
18. Site Works
Where the order includes NEM installing, servicing, repairing or erecting the Goods (the work) on site the following will apply:
The Customer will provide uninterrupted access to the site for the Work including provision of a mobile crane if necessary. NEM shall not be liable in anyway whatsoever for any loss or damage to the Customer or Customer’s agents, employees or subsidiaries due to the Work at the site. The Customer will provide all on-site services including electricity, fuel and water to NEM at no cost to NEM. This provision extends to any chemicals or treatments reasonably required for the Work. Work to be performed on-site outside usual business hours, shall only be done by agreement in writing between the parties and on such terms as NEM agrees. Notwithstanding anything in these Terms and conditions or any contract entered into NEM may refuse at its sole discretion to perform the Work on-site if the site is not suitable for any reason.