Terms & Conditions of Quotation and Sale
1. Definitions
a. Seller means, KBEST Marine PTY LTD
b. Purchaser means the person, firm or company who purchases the Goods from the Seller
c. Contract means the contract between the Seller and the Purchaser for the sale and purchase of the Goods in
accordance with these Terms and Conditions
d. Goods means jigs, tools, fixtures, parts, products, items, assemblies and any item or items described in any
quotation and/or acceptance of any order or any part thereof
e. Terms and Conditions means the terms and conditions set out in this document
2. Terms & Conditions
a. These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Purchaser
seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Acceptance
a. All quotations are subject to confirmation by the Seller on receipt of any order and the Seller reserves the right
to refuse any order
b. Quotations provided by the Seller will only remain valid for the period of time as indicated in the quotation after
which the Seller reserves the rights to re-tender if requested by the Purchaser to proceed further.
4. Drawings & Specifications
a. The Purchaser shall provide complete and accurate drawings and specifications recognised as complying with
an appropriate standard including but not limited to ISO Standards.
b. Where both 3D CAD models and drawings are provided, the Purchaser shall be responsible for confirming as
to which is the governing document.
c. In the absence of the Purchaser providing confirmation as to the governing document, the Seller shall in its
discretion either (i) suspend manufacturing until confirmation is given, or (ii) itself decide which is the governing
document and in either event, the Seller shall incur no liability to the Purchaser.
d. The Purchaser shall be responsible for ensuring that the information provided is free of conflicting information
or data.
e. The Seller maintains the right to cease all progress and manufacturing of the Goods without liability should
information provided by the Purchaser be conflicting, in error, incomplete or inadequate in any way to produce the
f. The Purchaser shall be responsible for providing all of the specifications required in order to manufacture the Goods. The Seller shall not be charged for the provision of said specifications. g. The Purchaser shall be responsible for providing all of the information required for the manufacture of the Goods including but not limited to technical drawings and 3D CAD models in a complete and accurate state. 5. Quotation a. All quotations, indication of costs and financial commitments given or made by the Seller are based on the assumption of the validity of the information provided being fully accurate and correct in all circumstances. The Seller maintains the right at any stage to re-negotiate any contract, cost agreement or any other relevant commitment should any information provided by the Purchaser fail to be fully valid accurate and correct. The quote provided is based on three consecutive working days for the preparation, marking and concreting of the columns. If unable to work consecutive days, extra cost might apply. Once the columns are in place and the concrete footing have cured, a day will then be required to install the Shade Sail. 6. Failure to Disclose Information a. If any technical, commercial or other issue (the Undisclosed Issue) arises during the course of the Contract of which the Purchaser was aware or should have been aware prior to entering into the Contract but did not disclose to the Seller, the provisions of this section 6 shall apply. b. The Seller shall be entitled to halt the development, manufacture or any other value add process until it has obtained sufficient information which in the sole discretion and judgment of the Seller enables the Seller to resume and the Seller shall incur no liability to the Purchaser in connection with the resulting delay or Goods manufactured where such incorrect information has been provided including:
• i. concession costs
• ii. scorecard quality and delivery implications or penalties
• iii. late delivery penalties c. Furthermore, where the Seller is in substance replicating a process of the Purchaser any deviation of results from the process of the Purchaser will constitute a failure to supply complete and accurate information for the purposes of Clause 6b. d. The Seller maintains the right to re-negotiate the costs and other terms of the Contract to take account of the Undisclosed Issue or issues. If the Seller and the Purchaser cannot reach agreement in such renegotiations, the Seller shall be entitled to terminate the Contract and the Purchaser shall be liable for all costs and expenses incurred by the Seller to the date of such termination. 7. Terms of Payment a. 50% deposit and 50% on completion without any holding period c. If payment is not made in accordance with clause 7a, the seller reserves the right to charge Statutory Interest on the overdue balances for the period from the date of the invoice until the date of payment. In addition, each overdue invoice will attract an administration fee which will be paid by the Purchaser to the Seller. d. Failure to pay by the due date shall entitle the Seller to suspend delivery of all current and future orders. e. Where the Seller has good reason to believe the Purchaser may default on payment, the Seller reserves the right at any time and in its absolute discretion to demand immediate payment of any account and to take legal action to recover the debt and costs. f. The Seller reserves the right in its absolute discretion to refuse to grant credit.
g. The Seller may, at any time, without limiting any other rights and remedies it may have, set off any amount owing to it by the Purchaser against any amount payable by the Seller to the Purchaser. 8. Modifications a. All modification change requests shall be lodged by the Purchaser in writing and in accordance with applicable ISO or AS standards. b. The Seller will not agree to incorporate or implement any modification, drawing change, revision change or other change until the Purchaser has accepted the Sellers calculation of the costs and time for implementing such change. c. If any stock, WIP or raw material is affected by such modification or change then the Purchaser shall be liable for accepting the Goods in their current state. d. In addition, should such change affect the processing or production of this part, the Seller shall have the right to renegotiate the Contract to compensate the Seller for any increase in the cost of delivery of the Contract. 9. Changes & Cancellations a. Orders are not subject to change or cancellation by the Purchaser other than with the prior written consent of the Seller. b. In the event of cancellation or change to an order by the Purchaser, the Purchaser shall accept all completed Goods and all WIP Goods in process at full price. In addition the Purchaser shall reimburse the Seller for any loss on materials, tooling or other items purchased, for the purpose of fulfilling the order. c. Where the order is cancelled prematurely or the Purchaser shall fail to place orders in the quantities and in the time schedule for orders on which the Seller based the pricing in the Contract, the Seller shall remap the matrix pricing to reflect the actual quantity of Goods delivered to the Purchaser. The Purchaser shall thereafter pay to the Seller such sum as shall represent the difference between the aggregate original matrix pricing unit cost and the aggregate actual matrix pricing unit cost for all Goods delivered to the Purchaser. 10. Warranties a. The Seller does not warrant the suitability of the Goods for any particular purpose. b. The Seller warrants that the Goods shall conform to the drawings and specifications or descriptions furnished by the Purchaser and accepted by the Seller, will be of satisfactory quality. 11. Issues Relating to conformity a. Any issues of conformity shall be lodged by the Purchaser in writing within 30 days of delivery of the Goods 12. Latent Defects Liability a. If during the course of manufacture or thereafter, castings, forgings or other raw material purchased, fail for any reason not directly attributable to the Sellers manufacturing process then the Purchaser will be liable for all costs and expenses incurred by the Seller as a result of such failure. 13. IP a. Intellectual Property or IP includes any and all inventions whether or not patentable, utility models, trademarks, component designs or manufacturing processes and any improvements or enhancements thereto, copyrights and
moral rights, database rights, trade secrets and know-how, in each case whether registered or unregistered, and also including identified technical and non-technical or business-related information such as specifications, computer programs, drawings or blueprints. b. All background IP is and will remain the exclusive property of the party owning it. Neither party will be entitled to any right or license to any of the other party’s background IP. c. For the avoidance of doubt, any machine programmes, tooling, fixturing, routing, method of manufacture and any associated data used to manufacture the goods remains the sole Intellectual Property of the Seller. 14. Dispute Resolution a. The Seller and the Purchaser will use all reasonable endeavours to resolve any dispute which arises in connection with the performance of the Contract. b. If a dispute cannot be resolved at the operational level then:
• i. Either party may give written notice to the other setting out the nature and particulars of the matter which is the subject of the dispute.
• ii. Within 10 days after the notice is received by the addressed party, that party shall formally respond
• iii. The notice and the response shall identify a senior manager of the party appointed by the party as a representative to conduct discussions and provide a thorough statement of that party’s positions and full summary of reasons for supporting that position.
• iv. Within 10 days of receiving that response, the senior managers from both parties shall meet in person at a mutually acceptable place to seek a resolution. 15. Termination a. Should the Purchaser seek to terminate the Contract the Purchaser will be liable for paying to the Seller the full amount of all claims as outlined in clause 14, the cost of settling any legally justified claims in connection with the necessary termination of sub contracts entered into in respect of the Contract or part thereof and any other associated cost or claim in respect of the cancelled order or contract. b. Either party has the right, without prejudice to its other rights and remedies, to terminate the Contract without liability, if the other party commits any material breach of any of its obligations under the Contract which it fails to rectify within 30 days of written notice of that breach (no notice period will apply for a breach of delivery terms) or makes a general arrangement with its creditors; or ceases or threatens to cease to carry on its business or a substantial part of it or is unable to pay its debts within the meaning of the applicable law as defined below; enters into liquidation whether compulsory or voluntary, except as a solvent company for the purposes of amalgamation or reconstruction; or has an administrator or administrative receiver of the whole or part of its assets appointed or if any equivalent proceeding under any competent jurisdiction occurs. 16. Force Majeure a. Any delay or failure of either party to perform its obligations hereunder will be excused if, and to the extent that it is caused by an event or occurrence not reasonably foreseeable and beyond the reasonable control of the party and without its fault or negligence, such as, by way of example and not by way of limitation, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, inability to obtain power, material, labour, equipment or transportation, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) will be given by the affected party to the other party as soon as possible but in any event not later than 5 days after the occurrence of such event. 17. Governing Law & Jurisdiction
a. These Terms and Conditions are governed by and will be construed in accordance with, Australian Law. The Australian courts have jurisdiction to settle any dispute arising out of or in connection with the Contract or these Terms and Conditions and the legal relationships created by the Contract and these Terms and Conditions and each Party submits to the exclusive jurisdiction of the Australian courts with respect to such disputes