ACN 85 991 224; ABN 47 085 991 224

Unit 19, 77 Bourke Rd, Alexandria NSW 2015 AUSTRALIA


1 Scope and Definitions

1.1 These terms and conditions shall apply to all Contracts for Servicing (inspection, maintenance, repair and installation) as well as modifications and re-commissioning of plant and equipment belonging to the Client (collectively referred to as “the Work”).

1.2 Definitions

“the Contract” means the agreement between the Contractor and the Client in relation to the carrying out of the Work and incorporates the Contractor’s conditions.

“the Contractor” refers to CMC Technologies Pty Limited, and includes its sub-contractors, their personnel, and agents.

“the Client” means the party for whom the Work is carried out by the Contractor.

“the Contractor’s conditions” means these terms and conditions.

“Erection supervision” includes the advice or the technical instruction given by the Contractor to personnel belonging to the Client or a third party contracted by him and, as far as practicable, the control of the Work executed by these personnel based on the advice and/or instructions given.

“Installation” means the erection, supervision, commissioning and trial operation of the plant and equipment sold to the Client by the Contractor.

“Servicing” means the inspection, maintenance and repair as required of the Client’s plant and equipment.

2. The Entire Contract

The Contractor’s conditions shall apply to the Contractor’s obligations in relation to its carrying out the Work. Any additional or different conditions or terms contained in the Client’s purchase order or in any other communication made between the Client and the Contractor are of no force and effect and shall not be binding upon the Contractor, unless specifically agreed to in writing by the Contractor. Any condition or modification of the Contractor’s conditions will only be binding upon the Contractor if confirmed in writing by the Contractor.

3. Extent and Execution of the Work

3.1 The Work shall be performed on the Client’s premises.

3.2 The Client shall make his workshop facilities available to the Contractor’s personnel.

3.3 If additional labour or materials are considered necessary by the Contractor, they will be provided without Client’s prior consent unless he has expressly reserved the right of prior approval.

3.4 Unless otherwise agreed, replaced parts will not be returned to the Client.

3.5 Without the Contractor’s written permission, the Client will not be allowed to call upon the Contractor’s personnel to perform Work not covered by the Contract. The Contractor will not accept any liability for Work performed by order of the Client but without specific instructions given by the Contractor.

4. Co-operation of the Client


4.1 The Client shall carry out all that is deemed necessary to ensure that the Work is started on time and performed without hindrance or interruption.

4.2 The Client shall be responsible for performing any site and other preparatory work in a workmanlike manner at his own cost in accordance with the documents supplied by the Contractor, if any.

4.3 The Contractor’s personnel shall not be called upon to commence the work until all the preparatory work has been completed, and at least 4 weeks prior notice has been given, unless otherwise agreed between the Contractor and the Client.

4.4 At his own cost, the Client shall make the necessary arrangements for accident prevention. In particular, he shall bring to the attention of the Contractor any matter which has to be observed in his interest or that of other contractors, or where local regulations have to be complied with.

4.5 The Contractor shall be entitled to refuse or stop the Work if safety is not assured.

4.6 In the event of the Contractor’s personnel being involved in an accident or becoming ill, the Client shall provide the necessary assistance.

4.7 The plant and equipment to be erected shall be stored by the Client in such a way that it is properly protected against any damage or deterioration. Before the commencement of the Work, the Client shall check whether the material is complete and free

from damage, in the presence of the Contractor’s personnel. Should any items be lost or damaged during the storage period, they shall be replaced or repaired at the cost of the Client.

4.8 If the aforementioned requirements are not or only partially fulfilled, the Contractor shall be entitled to undertake the same or to call upon the services of a third party. The costs incurred for this non-fulfilment shall be borne by the Client.


4.9 In the case of Servicing or modification Work:

(a) The Client shall place at the Contractor’s disposal all available technical documentation relevant to the plant and equipment concerned.

(b) Spare parts are not included in the Contract price. The Client shall purchase and make available for use by the Contractor all critical spares to ensure that servicing is able to be carried out promptly by the Contractor.

5. Contractor’s Obligations

5.1 The Contractor agrees to carry out the Work in a workmanlike manner and with qualified personnel.

5.2 The Contractor shall ensure that the Work is carried out in accordance with all applicable laws, regulations and rules. In the event of changes to those laws, regulations or rules referred to occurring between the date of submission of a quotation and the commencement of the Work, the Contractor shall carry out any such variations but the cost of any variations shall be borne by the Client.

6. Performance and Completion

6.1 Dates and times specified for the performance of the Work shall only be considered binding if they are confirmed by the Contractor in writing. The scheduled time shall begin as soon as all the pre-requisites for beginning the Work are fulfilled by the client.

6.2 The Contractor’s obligations shall be regarded as being met when the Work has been completed on the due date of termination or, if the Work is carried out in stages, with the completion of the respective stage.

6.3 The time for completion of the Work shall be reasonably extended:-

(a) if any information required by the Contractor to execute the Work is not received in due time or if subsequent changes made by the Client delay the Work;

(b) if the Client is in arrears in meeting his contractual obligations and especially if he does not meet his payment obligations;

(c) where the Contractor suspends performance of its obligations for the period and to the extent that its performance is impeded or made unreasonably onerous by circumstances for which it is not responsible, such as but not limited to fire, war, civil riots, sabotage, labour disputes, accidents, illness, late or deficient deliveries or other natural disasters (a force majeure).

6.4 If, for any reason beyond the Contractor’s control, the Contractor’s personnel are exposed to any danger or hindered in executing the Work, the Contractor shall be entitled to call back his personnel. In such a case or in cases where the Contractor’s personnel are detained after termination of Work, the waiting time charged according to the specified hourly or daily rates as well as the travelling costs including the catering and accommodation costs shall be borne by the Client.

7. Force Majeure

7.1 A party claiming to be affected by force majeure shall notify the other party in writing without delay giving details of the circumstances and the period required to extend the performance of the Work.

7.2 The Contractor shall not be deemed to be in default of the Contract and shall not be liable, directly or indirectly for any loss or delay, nor for its inability to perform or make delivery under the Contract occasioned by war, strikes, boycotts, lockouts, shortages, confiscation, transportation and communications problems, or to any other circumstances or matters or inevitable accident beyond the control of the Contractor.

8. Working time for Lump Sum Contracts for Installation

8.1 The normal working time, as well as overtime, late work, night work and work on Sundays or public holidays is governed by the Enterprise agreements of the metal industry or Awards of the State in Australia where the Work is to be carried out.

8.2 Travelling time as well as a reasonable preparatory and finalizing period in connection with the Contract (reporting and evaluating) shall be regarded as working time in accordance with Clause 8.1.

The period required for travel to and from the site shall be deemed as travelling time.

8.3 If for any reason beyond the Contractor’s control, the Contractor’s personnel are hindered in their work or detained after termination of Work, the waiting time shall be charged as working time. All the other associated costs shall be payable by the Client. This shall also apply to any other waiting times for which the Contractor is not responsible, e.g. local public holidays.

8.4 The normal daily working time is 8 hours within the limits of 08.00 and 19.00 hours. The normal weekly working time is 40 hours, generally distributed over a period of 5 working days. If, for reasons beyond the Contractor’s control, the working time is less than that specified, the Contractor shall charge the normal working time.

8.5 Any hours worked in excess of the normal daily or weekly working time shall be regarded as overtime. Overtime shall only be permitted by mutual agreement. In general, it should not exceed the daily working time by more than two hours and the weekly working time by more than ten hours.

9. Charging of Costs

9.1 Except as otherwise agreed, as in the case of a maintenance Contract or a lump-sum Contract, Work shall be charged according to the time and materials expended. The Work for Installation or modifications and re-commissioning shall be charged on a time and materials basis.

9.2 On presentation of the time sheets, the Client shall verify the time expanded by the Contractor’s personnel with his signature. If this verification is not undertaken by the Client in due time, the entries of the Contractor’s personnel shall serve as a basis for calculation.

9.3 The rates for charging of Contractor’s personnel as specified in the Contractor’s Rates Schedule shall be valid for Work conducted during normal working hours, overtime, night-work, Sunday work and Work performed on a public holiday, travelling time and any other time deemed equivalent to the working time.

9.4 The rates for the Contractor’s personnel include the costs of a basic supply of normal tools and simple equipment. If special equipment is required for the performance of the Work, adequate hire rates shall be charged from the day of dispatch to the day of their return to and arrival at the place of dispatch. Items not returned by the Client shall be charged to him at the respective replacement price. Transport and insurance costs, as well as further expenses, dues and fees associated with the import and export of any items shall be charged to the Client.

9.5 Consumables for Installation and sundry erection materials supplied by the Contractor shall be charged at cost.

9.6 A lump-sum Contract made in writing shall apply to the scope of work undertaken. The lump-sum price shall cover the agreed extent of work to be performed by the Contractor. The lump-sum price is conditional upon the non-hindrance of the Work, and the timely completion of any preparatory or ancillary work to be performed by the Client.

9.7 Any additional effort for which the Contractor is not responsible, e.g. subsequent modifications to the content or the extent of the agreed Work, as a result of waiting time, re-working, additional travelling time etc. shall be charged to the Client. The charges shall be in accordance with Clause 8.2 and 8.4.

10. Terms of Payment

10.1. Unless otherwise agreed, payment shall be made within fourteen (14) days of receipt of the Contractor’s invoice, without any deduction.

10.2 The Contractor reserves the right to charge interest at the rate of one percent (1%) per month on the outstanding balance of the Contractor’s invoice, if payment is not received on the due date, until the date payment is actually made to the Contractor by the Client.

11. Insurance

The Client shall at its own expense arrange to take out an insurance policy including the name of the Contractor as a co-insured party, to cover any damage to the plant and equipment acquired from the Contractor during its transport, storage and installation.

12. Risk of Damage or Loss

Except in the case of the negligence on the part of the Contractor, the Client shall bear the risk of damage to or loss of the plant and equipment installed by the Contractor during its transport, storage and installation.

13. Passing of Property

Title to plant and equipment supplied by the Contractor to the Client shall only pass to the Client when the purchase price has been paid in full by the Client.

14. Liability of the Contractor

14.1 The Contractor shall only be liable for damage occurring to the plant and equipment supplied by it or for injury to persons and damage to property resulting from its carrying out the Work where such damage or injury has been caused by negligence on the part of the Contractor, its servants or agents or sub-contractors.

14.2 Should the plant or equipment on which the Contractor’s personnel have been working be destroyed or damaged for any reason beyond the Contractor’s control, the Contractor shall still be entitled to payment for the Work performed.

14.3 The Client shall also bear the risk of loss or damage to any tools, equipment or materials provided by it to assist the Contractor to carry out the Work.

14.4 The Client shall be responsible for any damage caused by its personnel. This shall also apply if the Contractor’s personnel are directing or supervising the Work, unless it is proven that they have acted with gross negligence in the course of instruction or supervision.

14.5 The Client shall be responsible for damage that is sustained due to the use of defective tools, equipment and materials that he has placed at the Contractor’s disposal. This shall also apply if these have been employed without previous objection by the Contractor’s personnel.

14.6 Under no circumstances shall the Contractor be liable for any consequential loss or damage incurred by the Client relating to the Contractor’s carrying out of the Work.

15. Warranty

15.1 The Contractor warrants to the Client that the plant and equipment supplied by it and installed by it as part of the Work and the services comprising the Work itself, shall be free from defects in workmanship and materials for a period of six (6) months from completion of the Work, provided that the deficiencies are notified to the Contractor in writing as soon as the defect becomes apparent, but in any case within the warranty period.

15.2 The warranty shall not apply if contrary to the express recommendations of the Contractor, work was ordered by the Client in circumstances where it was not considered necessary by the Contractor.

15.3 The liability of the Contractor to the Client for a breach of this warranty shall be limited to:-

(a) the replacement of any plant and equipment;

(b) the supply of the services again; or

(c) the payment for the costs of replacing the plant and equipment or of acquiring equivalent plant and equipment; or

(d) the payment of the cost of having the services supplied;

(e) at the option of the Contractor.

15.4 For Work carried out under warranty, the Contractor shall provide warranty to the same extent as for the original Work but not beyond the warranty period of the latter.

15.5 Any further claims on the part of the Client with regard to deficiencies shall be excluded.

15.6 No warranty shall be provided if the Client or a third party undertakes modifications or repairs without the Contractor’s written permission, or if the Client does not immediately take suitable measures to reduce the possible damage.

16. Arbitration

Any dispute arising out of or relating to the Contract between the Client and the Contractor, or these conditions or the breach, termination, validity or subject matter of the Contract, or as to any claim in tort or equity or pursuant to any domestic or international law shall be referred to by the parties to arbitration administered by the Australian Commercial Disputes Centre and conducted in accordance with the Commercial Arbitration Act 1984 (NSW).

17. Jurisdiction in Law

The parties submit to the jurisdiction of the Courts of the State of New South Wales in regard to any disputes that relate to the Contract. The law from time to time in force in the said State shall apply to the Contract in all respects including its formation, interpretation, enforcement and discharge.


ACN 85 991 224; ABN 47 085 991 224

Unit 19, 77 Bourke Rd, Alexandria NSW 2015 AUSTRALIA