Terms and Conditions
Terms and Conditions of Manufacture & Supply
All Goods sold or supplied by Hammer Tech and/or its Associated Entities to the Buyer are provided on the following Terms. By placing an Order or accepting delivery of Goods, the Buyer agrees to be bound by these Terms, unless otherwise agreed in writing. These Terms prevail over any terms provided by the Buyer, unless expressly accepted by Hammer Tech in writing.
1. Orders and Acceptance
1.1 The Buyer may request the supply of Goods by submitting an Order specifying:
(a) description, specifications and quantities of the Goods;
(b) any site or performance requirements; and
(c) the desired Delivery Date.
1.2 The Buyer accepts and agrees to be bound by these Terms by:
(a) signing and returning a quotation, proposal or acceptance form issued by Hammer Tech; or
(b) placing an Order, instructing Hammer Tech to proceed, or accepting delivery of any Goods.
1.3 If the Buyer does not agree to these Terms, it must not place any Order or accept delivery of any Goods.
1.4 An Order is not binding on Hammer Tech unless accepted in writing. Hammer Tech may accept or reject any Order in its discretion.
1.5 If Hammer Tech requires clarification, or the Buyer omits material information, Hammer Tech may suspend acceptance of the Order until full and final information is provided.
1.6 Once Hammer Tech confirms acceptance of an Order in writing (Accepted Order), a binding Agreement arises, incorporating these Terms.
1.7 If any inconsistency exists between these Terms and any other document issued by the Buyer (including any terms on a purchase order), these Terms prevail to the extent of that inconsistency.
1.8 The Buyer may not vary or cancel an Accepted Order without Hammer Tech’s written consent. Hammer Tech may impose conditions for cancellation or variation, including reasonable costs for work undertaken or materials procured.
1.9 The Buyer acknowledges that changes to specifications or site conditions after acceptance may:
(a) require an updated Quote; and
(b) extend lead times or delivery dates.
2. Price & Payment
2.1 The Price payable for the Goods is as set out in the Accepted Order, exclusive of GST, delivery, and any applicable duties or levies, unless expressly stated otherwise.
2.2 Hammer Tech may issue a tax invoice:
(a) upon acceptance of the Order;
(b) at milestone stages during production; or
(c) upon delivery,
at its discretion or as specified in the Accepted Order.
2.3 Unless otherwise agreed in writing, payment must be made in full within 14 days from the date of invoice.
2.4 If a deposit is required under the Accepted Order, Hammer Tech is not obliged to commence work or procure materials until the deposit is received in cleared funds.
2.5 The Buyer must not withhold payment, make any deduction, or set-off any amount owing to Hammer Tech unless required by law.
2.6 If the Buyer fails to make payment by the due date, Hammer Tech may:
(a) charge interest at 2% per annum above the cash rate published by the Reserve Bank of Australia, accruing daily;
(b) recover from the Buyer all reasonable costs incurred in recovering the unpaid amount, including legal fees and debt recovery charges; and
(c) suspend or cancel further performance under any Accepted Order until all outstanding amounts are paid in full.
2.7 If payment is disputed, the Buyer must notify Hammer Tech in writing within 5 Business Days of receipt of invoice, identifying the specific dispute and reasons. All undisputed amounts remain payable by the due date.
3. Credit and Trading Terms
3.1 Where Hammer Tech agrees to supply Goods on credit, the Buyer must comply with any credit limits or payment terms specified by Hammer Tech in writing. Hammer Tech may withdraw or vary any such terms at its discretion.
3.2 Hammer Tech may suspend or terminate any supply if the Buyer is in default under any agreement between the parties. The Buyer must not set off or withhold payment of any invoice unless required by law or agreed in writing.
3.3 The Buyer consents to Hammer Tech conducting credit checks or making credit enquiries with third parties in connection with its assessment of the Buyer’s trading history and payment capacity.
3.4 Goods may not be returned for credit without Hammer Tech’s prior written approval. Approved returns must be unused, in saleable condition, and returned at the Buyer’s cost. A restocking fee may apply.
3.5 The Buyer warrants that all information provided in connection with an Order is accurate and complete, and that the person placing the Order is authorised to do so.
4. Specifications and Approvals
4.1 The Buyer is responsible for providing complete and accurate specifications, performance criteria, and site requirements at the time of placing an Order.
4.2 Hammer Tech will prepare and issue preliminary and detailed drawings for the Goods in accordance with the Buyer’s specifications. These drawings are indicative only and do not constitute final approval unless signed off by the Buyer in writing.
4.3 The Buyer must review and approve all drawings, models or specifications in writing before manufacture commences. Hammer Tech is not liable for errors, delays or additional costs arising from:
incomplete or inaccurate Buyer information;
(a) delayed Buyer feedback or approvals; or
(b) changes requested after approval has been given.
4.4 Once the Buyer has approved the final design, Hammer Tech may commence manufacturing. Any subsequent changes requested by the Buyer must be agreed in writing and may result in:
(a) an adjustment to the Price;
(b) an extension of the Delivery Date; and
(c) additional charges for remanufacture, rework or loss of materials.
4.5 If the Buyer fails to provide timely approvals or information required under this clause, Hammer Tech may suspend performance of the Agreement without liability until such time as approvals are received.
4.6 All Intellectual Property Rights in the design, drawings or models created by Hammer Tech remain the property of Hammer Tech unless otherwise agreed in writing.
5. Delivery
5.1 Unless otherwise stated in the Accepted Order, Hammer Tech will make the Goods available for collection at its premises in Welshpool, Western Australia. The Buyer is responsible for collecting the Goods and for all costs and risks associated with transport from that point onward.
5.2 Hammer Tech will use reasonable endeavours to meet any stated Delivery Date. However, Delivery Dates are estimates only and not of the essence.
5.3 Hammer Tech is not liable for delay or failure in delivery caused by:
(a) force majeure events under clause 9.1;
(b) delays in receiving materials, components or third-party services;
(c) the Buyer’s delay in providing specifications, approvals or information; or
(d) any variation to the scope of the Accepted Order.
5.4 If delivery is delayed for reasons attributable to the Buyer, Hammer Tech may:
(a) arrange storage of the Goods at the Buyer’s risk and expense; and
(b) invoice the Buyer as if delivery had occurred.
5.5 Risk in the Goods passes to the Buyer upon delivery or, where the Buyer is arranging transport, upon collection by the Buyer or its carrier.
5.6 Delivery is complete when the Goods are made available for unloading at the location specified in the Accepted Order or otherwise agreed.
5.7 The Buyer is responsible for unloading and installation of the Goods unless expressly agreed otherwise.
6. Title and risk
6.1 Risk in the Goods passes to the Buyer upon delivery, in accordance with clause 5.
6.2 Title to the Goods does not pass to the Buyer until Hammer Tech has received full payment of:
(a) the Price for those Goods; and
(b) all other amounts owing by the Buyer to Hammer Tech under any Agreement.
6.3 Until title passes:
(a) the Buyer holds the Goods as bailee for Hammer Tech;
(b) the Buyer must store the Goods separately and clearly identify them as Hammer Tech’s property;
(c) the Buyer must not sell, lease, or otherwise dispose of the Goods except in the ordinary course of its business; and
(d) Hammer Tech may enter the Buyer’s premises at any time to inspect or recover the Goods without notice.
6.4 If the Buyer sells the Goods before title passes:
(a) the Buyer does so as principal and not as agent of Hammer Tech; and
(b) the proceeds of sale (to the extent of the amount owed) are deemed to be held on trust for Hammer Tech and must be immediately remitted.
6.5 This clause creates a Security Interest in the Goods for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA). The Buyer consents to Hammer Tech registering its interest and agrees to provide all assistance and information required to perfect or enforce that interest.
6.6 The Buyer waives its rights to receive notices or statements under sections 95, 118, 121(4), 123, 130, 132(3)(d), and 135 of the PPSA and agrees to contract out of sections 142 and 143 of the PPSA to the extent permitted by law.
7. Manufacturer Warranty
7.1 Hammer Tech warrants the Goods will be free from material defects in workmanship for 12 months from delivery.
7.2 The warranty excludes failure caused by:
(a) misuse, neglect or unauthorised modification;
(b) installation or use inconsistent with supplied instructions; or
(c) fair wear and tear or external damage.
7.3 Hammer Tech’s liability for breach of warranty is limited to, at its option:
(a) repair;
(b) replacement; or
(c) refund of the Price paid for the defective Goods.
7.4 All transportation costs associated with returning Goods for assessment or repair and redelivery to the Buyer are borne by the Buyer, unless otherwise agreed in writing.
7.5 To the extent permitted by law, Hammer Tech excludes all other warranties, conditions and guarantees, except those that cannot be excluded under the ACL.
7.6 Hammer Tech is not liable for any indirect, special or consequential loss, loss of profit, loss of opportunity, or loss of use, whether arising under contract, tort (including negligence), statute or otherwise.
7.7 Nothing in this Agreement excludes, restricts or modifies any consumer guarantee or other right under the Australian Consumer Law (ACL) that cannot be lawfully excluded. Where the ACL applies, the Buyer is entitled to a replacement or refund for major failure and compensation for reasonably foreseeable loss or damage.
8. Cancellation and Variation
8.1 The Buyer may request changes to an Accepted Order, but no variation is binding unless agreed in writing by Hammer Tech.
8.2 If a variation affects the scope, specifications, materials, or delivery timeframes, Hammer Tech may:
(a) adjust the Price;
(b) extend the Delivery Date; and
(c) require confirmation of the revised Order before continuing.
8.3 The Buyer may not cancel an Accepted Order without Hammer Tech’s written consent. If consent is granted, the Buyer must pay:
(a) costs for work in progress and materials ordered;
(b) third-party cancellation or restocking fees; and
(c) a reasonable charge for time and capacity allocated to the Order.
8.4 Hammer Tech may cancel or suspend an Order by notice if:
(a) the Buyer fails to meet a material obligation (including payment, approvals or instructions) within 10 Business Days of request;
(b) the Buyer becomes insolvent; or
(c) delivery or manufacture is materially delayed due to circumstances beyond Hammer Tech’s control.
9. Force Majeure
9.1 If either party is unable to perform its obligations due to events beyond its control, including but not limited to laws, court orders, labour disputes, transport disruptions, equipment breakdown, natural disasters, war, civil unrest, quarantine, severe weather, crop failure, or acts of God, that party is excused from performance to the extent affected. The affected party must take reasonable steps to resume performance as soon as possible and notify the other party within one day of the event. Performance dates will be extended by the period of the delay.
10. Intellectual Property and Confidentiality
10.1 All Intellectual Property Rights in the designs, drawings, models, software, tooling, and technical documentation created or supplied by Hammer Tech remain the property of Hammer Tech unless otherwise agreed in writing.
10.2 The Buyer must not reproduce, disclose, or use any of Hammer Tech’s intellectual property for any purpose other than the use, operation, or maintenance of the Goods.
10.3 Where the Buyer provides Hammer Tech with specifications, data or designs, the Buyer warrants it has the right to do so and indemnifies Hammer Tech against any claim of infringement by a third party.
10.4 Each party must treat as confidential all technical, commercial or operational information disclosed by the other in connection with an Order. This obligation survives completion or termination of the Agreement.
10.5 Nothing in this Agreement transfers ownership of pre-existing intellectual property of Hammer Tech.
11. Indemnity
11.1 The Buyer indemnifies Hammer Tech against any Claim, loss, damage, liability, cost or expense (including legal costs on a full indemnity basis) arising out of or in connection with:
(a) any breach by the Buyer of these Terms or an Accepted Order;
(b) the Buyer’s use, modification or installation of the Goods other than as authorised or intended;
(c) any Claim by a third party arising from Goods supplied in accordance with the Buyer’s specifications or instructions;
(d) any negligent or unlawful act or omission of the Buyer, its employees or contractors.
11.2 The Buyer’s liability to indemnify Hammer Tech under this clause is reduced to the extent that Hammer Tech caused or contributed to the relevant Claim, loss or liability through its own negligence.
12. Termination
12.1 This Agreement may be terminated by either Party with immediate effect if:
(a) a Party (Defaulting Party) fails to comply with or is in breach of any of its material obligations under this Agreement and such non-compliance or breach is not remedied by it within 10 Business Days of the other Party requesting the Defaulting Party to do so in writing; or
(b) any Insolvency Event occurs in respect of a Defaulting Party.
12.2 Termination of this Agreement will not affect any accrued rights or liabilities of either Party or any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
13. Dispute Resolution
13.1 The Parties shall endeavour to settle any dispute, claims or actions arising out of or relating to this Agreement, including with regard to its existence, validity or termination, by mediation administered by a jointly appointed mediator, failing which to be appointed by the President of the Law Society of Western Australia.
13.2 This clause will remain operative after the completion of this Agreement, notwithstanding the termination of this Agreement.
14. Special terms
14.1 The special terms, covenants and conditions (if any) set out in Schedule 1 (Special Terms) shall be deemed to be incorporated in this Agreement as if fully set out herein and in the event of there arising any inconsistency with the terms, covenants and conditions contained in this Agreement, then the Special Terms shall prevail.
15. General
15.1 Assignment
(a) The Buyer may not assign its rights or obligations under these Terms without Hammer Tech’s prior written consent.
(b) Hammer Tech may subcontract performance of any part of the supply of Goods without notice to the Buyer.
15.2 No Waiver
No waiver of a right or remedy under these Terms is effective unless in writing. A failure to exercise or delay in exercising a right does not operate as a waiver.
15.3 Severability
If any part of these Terms is held to be invalid or unenforceable, that part is severed and the remainder continues in full force.
15.4 Entire Agreement
These Terms, together with any Accepted Order, constitute the entire agreement between the parties in relation to the supply of the Goods. Further, no oral representations, promise, warranty or undertaking relating to this Agreement shall be of any force or effect unless in writing and signed by those Parties.
15.5 Notice
Any notice or communication under this Agreement must be in writing to the last known address of the other and given using one of the methods below:
Method of Notice & Timing of Receipt
Hand delivery: When the notice is delivered to the recipient’s address.
Post (registered): 3 business days after the notice is posted.
Post (ordinary): 4 business days after the notice is posted.
Email: On the day the email is sent, provided the sender’s system does not receive a delivery failure notification.
If a notice is received after 5:00pm on a business day, or on a day that is not a business day, it is taken to be received at 9:00am on the next business day.
15.6 Governing Law
This Agreement is governed by and must be construed in accordance with the laws of Western Australia.
15.7 Interpretation
In this Agreement, unless the context otherwise requires:
(a) headings to clauses are for convenience only and do not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) where a word or phrase is defined, its other grammatical forms have corresponding meaning;
(d) reference to any gender includes all genders;
(e) reference to a party to this Deed includes the party’s successors and permitted assigns;
(f) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(g) the words “include”, ‘includes” or “including” or cognate words and expressions are to be construed without limitation;
(h) any reference to a person includes a corporation or trust; and
(i) the words subsidiary, holding company, officer and related body corporate have the same meaning as in the Corporations Act 2001 (Cth).
16. Definitions
Accepted Order means an Order confirmed in writing by Hammer Tech.
ACL means the Competition and Consumer Act 2010 (Cth) and associated regulations, including the Australian Consumer Law.
Agreement means the contract formed by these Terms and any Accepted Order.
Associated Entities has the meaning set out in section 50AAA of the Corporations Act 2001 (Cth).
Business Day means any day that is not a Saturday, Sunday or public holiday in the State of Western Australia.
Buyer means the person or entity purchasing the Goods.
Claim mean any and all liabilities, losses, damages, costs, expenses, debts, notices, judgments, awards, petitions, allegations, actions, proceedings, penalties, or other like claims made under any cause of action or by any person or entity including a third party.
Delivery Date means the date agreed for delivery of the Goods, as specified in the Accepted Order or otherwise confirmed in writing.
Force Majeure Event has the meaning given in clause 9.1.
Goods means the equipment, materials or fabricated products specified in the Accepted Order.
GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hammer Tech means Hammer Tech Pty Ltd (ACN 619 403 744).
Intellectual Property Rights means intellectual property rights produced during, or arising out of the provision of the Agreement, including but not limited to:
(a) any patent, trademarks, copyright, registered design or other design right, electronic or circuit layout right, and any corresponding property or right under the laws of any jurisdiction throughout the world;
(b) any right under the laws of Australia, or of any other jurisdiction throughout the world, to apply for the grant of registration of a patent, trade mark, copyright, design, electronic or circuit layout right, or any corresponding property or right; and
(c) any rights throughout the world in respect of an invention, discovery, trade secret, know-how, concept, idea, information, data, algorithm, or formula.
Order means a written request submitted by the Buyer for the supply of Goods.
Party means a party to this Agreement.
Price means the amount payable by the Buyer for the Goods, as stated in the Accepted Order, exclusive of GST unless otherwise stated.
Security Interest means:
(a) in relation to any personal property (as defined in the PPSA and to which the PPSA applies), has the same meaning as in the PPSA; and
(b) in relation to any other property, means any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power.
Terms means these terms and conditions of manufacture & supply.
Schedule 1 Special Terms & Conditions
This Schedule records any additional or modified terms agreed in writing between Hammer Tech and the Buyer that apply to the relevant Order or engagement. If no entries are recorded in this Schedule, the Terms apply in full without variation.
- 1. Special Terms
1.1 Delivery will occur to [insert location], with freight arranged and paid by Hammer Tech.
1.2 50% deposit required before commencement; balance payable on completion of fabrication.