Terms and Conditions

1. General

1.1 In these conditions the following definitions apply: “

Business Day” means a day other than Saturday, Sunday or public holiday in Western Australia.

“Company” means ‘Mine West Mechanical Pty Ltd’ (ACN: 168 421 323) as Trustee for ‘The S & K Pattison Trading Trust’ (ABN: 19 536 410 946) T/A ‘Performance Mine Mechanical’ at Building C, 283 Treasure Road North, Welshpool WA 6106.

“Conditions” means these terms and conditions as amended from time to time in accordance with conditions 8.1. “Conduct” means the contract between the Company and the Customer for the provisions of the Services in accordance with these conditions.

“Customer” means the person, firm or company to whom the Company provides the Services.

“Equipment” means a vehicle of any description or any other item of machinery and includes the Equipment’s component parts.

“Event of Disruption” means any of the following:

(a) The outbreak of hostilities (whether or not accompanied by and formal declaration or war), riot, civil disturbance or acts of terrorism;

(b) The act of any government or competent authority (including the cancellation or revocation of any approval, authority or permit;

(d) The declaration of a state of emergency or the invocation of martial law having an effect on commerce generally;

(e) Industrial action (including strikes and lock-outs) that is of a widespread nature effecting the Company or the industry or sector of which the Company is a part (whether in a vertical sense or horizontal sense);

(f) Any insignificant delay by the Customer in providing the Equipment or Materials required by the Company to perform the Services;

(g) The default of any suppliers under any material contracts to which the Customer is a party; or

(h) Any other cause, impediment or circumstance beyond the reasonable control of any party.

“Guarantors” means the person of whom guarantees (if more than one, then jointly and severally) payment for all amounts payable by the Customer to the Company.

“Invoice” means an invoice issued by the Company to the Customer in relation to the Services.

“Materials” means the materials and goods necessary for the Company to provide the Services.

“Order” means the Customer’s order for the Services whether made in writing or by spoken word.

“PPSA” means Personal Property Securities Act 2009 (Cth).

“Personal Properties Securities Register” means the register of security interests established under section 147 of the PPSA.

“Standby Rate” means 50% of the Rate calculated from 7.20am until 5.30pm.

“Rate” means rate per hour plus GST or such other rate as notified to the Customer from time to time.

“Services” means Services of any kind relating to the repair, maintenance, refitting, improving, inspection, testing, storage, transport, handling or delivery of the Equipment and includes the supply installation and/or fitting of the Materials.

“Warranty” means in relation to the Materials, any applicable manufacturer’s warranty.

1.2 In these Conditions, the following interpretations apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its personal representatives, successors or permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-inacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-inacted;

(d) any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression must be construed as illustrative and not limiting the sense of the words proceeding those terms; and

(e) a reference to ‘in writing’ includes faxes and emails.

2. Basis of Contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practise or course of dealing.

2.2 No terms or conditions endorsed on, delivered with or contained in the Order, confirmation of Order or other document form party of the Contract simply as a result of such a document being referred to in the Contract.

2.3 Each Order constitutes an acceptance by the Customer that the Services will be performed by the Company for payment at the Rate in accordance with the Contract and that the Contract applies to all Orders made on or after the date the Customer signs a copy of these Conditions.

2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in these Conditions.

3. Orders for and provision of Services

3.1 The Customer may make an Order in writing or by spoken word.

3.2 The Company will attend the Customer’s premises or such other location specified by the Customer in Order and carry out the Services as soon as practicable.

3.3 The Customer must provide the Company with initial instructions or a description of the Services required. The Customer hereby authorises the Company to do all necessary repairs and replace all necessary parts with the suitable Material as deemed necessary in the reasonable opinion of the Company in the circumstances, and in any event in a proper and workmanlike manner.

3.4 If, during the performance of the Services, the Company discovers problems which were not found at first instance or not identified or described by the Customer when making the Order, and such problems require additional work or Materials:

(a) The Company will notify the Customer of the additional work and Materials required; and

(b) The Customer may elect to have the additional work and Materials supplied or cancel the Order provided that the Customer must pay the Company for all work and materials supplied up to the time notified.

4. Warranty

4.1 Where the Services includes the provision of Materials and the materials are supplied with the benefit of a warranty, the Company will endeavour to procure in favour of the Customer the benefit of such warranty given to the company by the manufacturer.

4.2 The Company guarantees all workmanship will be carried out in a professional and proper manner.

4.3 The Company warrants that the materials will be fit for purpose and:

(a) except as provided in this condition 4, the Company will have no further liability to the Customer in respect of the Materials ‘ failure to comply with any warranty set out in condition 4.1;

(b) except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract; and

(c) these conditions apply to any repaired or replacement materials supplied by the Company provided that any warranties for the replacement materials are subject to any conditions or limitations placed by the manufacturer.

4.4 In the event that the Company replaces any materials under a warranty, the Customer must pay the Company for all labour including all travel from the Company’s base to the Customer premises and return, performed by the Company in replacing such materials at the prescribed rate.

5 Title and Risk

5.1 Risk in the materials passes to the Customer upon completion of the Services by the Company.

5.2 Title in the materials does not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for:

(a) The materials and Services; and

(b) All other sums which are, or which become, due to the Company from the Customer on any account.

5.3 Until title to the materials has passed to the Customer, the Customer agrees with the Company that:

(a) The Customer has no right of claim to any interest in the materials;

(b) The Customer cannot claim any lien over the materials;

(c) The Customer will not create any absolute or defeasible interest in the materials in relation to any third party except as maybe authorised by the Company; and

(d) The Customer is a Bailee of the materials until such time as title in them passes to the Customer and that this bailment continues in relation to the materials until all amounts due to the Company are paid in full as set out in conditions 5.2.

5.4 Until title in the materials passes to Customer, the Customer acknowledges and agrees:

(a) The Company has a general lien on any equipment and materials and in its possession, custody or control for all sums due and payable under an invoice from the Company to the Customer in respect of the Services to any or all equipment under lien or any earlier Services on any other equipment, and will be entitled to sell or dispose of such equipment or materials at the expense of the Customer and apply the proceeds in or towards the payment of the invoice or other sums due and payable to the Company in enforcing its rights under the contract. Upon accounting to the Customer for any balance remaining after the payment of any such sum due to the Company and to the costs of sale and disposal (including legal costs on a full indemnity basis). The Company will be discharged from any liability whatsoever in respect of the equipment or materials;

(b) The Company has a security interest in the materials and the equipment and materials are installed within the meaning of the PPSA;

(d) The Company may enforce its right under the PPSA including seizure and sale of the materials and the equipment;

(e) notwithstanding the provisions of the PPSA, or until such time as the PPSA comes into force, if the Customer does not pay the invoice by the due date specified, the Customer irrevocably authorises the Company to enter the Customer premises (or any premises under the control of the Customer or as agent of the Customer if the materials and equipment are stored at such premises) and use reasonable force to take possession of the materials and/or equipment without liability for the tort of trespass negligence, or payment of any compensation to the Customer or anyone claiming through the Customer whatsoever; and

(f) To waive its right under PPSA to do any of the following:

(i) receive notice of removal of an accession under section 95;

(ii) Receive notice of an intention to seize collateral under section 12;

(iii) Receive notice of disposal of collateral under section 130;

(iv) Receive a statement of account if there is no disposal under section 130(4);

(v) Receive notice of retention of collateral under section 135;

(vi) Redeem the collateral under section 142;

(vii) Reinstate the security agreement under section 143:

(viii) Object to the purchase of the collateral by the secured party under section 129; and

(ix) receive a statement of account under section 132(3)(d) following a disposal showing the amounts paid to other secured parties and whether security interests held by other secured parties have been discharged.

6. Price and Payment

6.1 The price of the Services will be set out in the invoice.

6.2 The Company charges all labour incurred in providing the Services including travel from the Company‘s base to the Customer’s premises and return at the rate with a minimum charge of 1 hour for all business days. The minimum labour charged at the rate for Saturdays, Sundays and public holidays is 4 hours.

6.3 In the event that the Customer makes an order and the Company is required to attend the Customer’s premises pursuant to clause 3.2 and an event of disruption occurs within 3 business days prior to when the Company is scheduled to attend the Customer’s premises, or during the Company’s attendance at the Customer’s premises, the Customer must pay the Company the standby rate for the time the Company is unable to carry out the Services for the Customer.

6.4 In the event that the Customer cancels the order before the Company has the opportunity to perform the Services. The Customer must pay the Company the standby rate for the time the Company would have taken to perform the Services or 3 days (whichever is higher).

6.5 The Company will invoice the Customer for the Services after the completion of the Services.

6.6 All invoices are due and payable by the Customer in full within 30 days end of the following month of the invoice date, (less any amount paid in advance) by cash or cleared funds.

6.7 The Customer must pay all amounts due under the contract in full without any deduction or withholding except as required by law and the Customer is not entitled to assert any credit, set off or counterclaim against the Company in order to justify withholding payment of any amount in whole or in part. The Company at any time, without limiting any other rights or remedies it might have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.

6.8 Interest of 10% per annum will be charged on all outstanding amounts owed by the customer to the Company, calculated from the date at which the debt is due and payable in accordance with clause

6.6 above.

7. Default

7.1 In the event of a default in payment by the Customer of an invoice in accordance with conditions 6.4 and 6.5 above and without prejudice to any other rights the Company may have:

(a) The Customer indemnifies the Company for any loss incurred by it as a consequence of the Customer’s breach of the contract;

(b) The Company may exercise all rights available to it under the PPSA including seizing and selling the materials; and

(e). 7.2 The Customer must pay the company all actual costs, expenses, or disbursements incurred by the Company including debt collection agency fees, solicitors fees (on a full indemnity basis) and all other costs, expenses or disbursements incurred in relation to collection or attempted collection of overdue accounts under the contract.

8. General

8.1 These conditions cannot be varied unless agreed in writing by the parties.

8.2 In all respects time is of the essence in respect to the Customer’s obligation under the contract.

8.3 The Company may at any time assign a, transfer, charge, subcontract or deal in any manner with all or any of its rights or obligation under the contract.

8.4 This contract shall be governed in all respects by the laws of the state of Western Australia and the parties submit to the jurisdiction of the courts of the State of Western Australia.

8.5 If any court or competent authority finds any provision of the contract (or part of provision) is invalid, illegal or unforceful, that provision or part provision shall, to the extent required, by deemed to be deleted and the validity and enforceability of the contract shall not be affected.

8.6 If any invalid, unenforceable or illegal provision of the contract would be valid, enforceable, and legal if some part of it were deleted, the provisions shall apply with the minimum modification necessary to make it legal, valid and enforceable.

8.7 The failure to exercise or delay in the exercise of any right, power, or privilege in this contract by the Company will not operate as a waiver of threat right, power or privilege.

8.8 A waiver of any right or remedy under the contract is only effective if given in writing and must not be deemed a waiver of any subsequent breach or default.