The following definitions shall apply -
"Goods" means all goods, chattels, plant, equipment, machinery, stores, parts or components sold by the seller.
"Manufacturer" means the maker or makers of the Goods (or any part or component of the Goods) sold by the seller.
"Purchaser" means the person, firm or corporation to whom the Goods are sold.
"Seller" means Cummins Engine Company (ACN 006 332 949)

Unless otherwise agreed in writing, Goods are supplied by the Seller only on these terms and conditions which shall become part of the contract ("Contract") between Seller and Purchaser with respect to the Goods and which shall apply to the exclusion of any terms or conditions contained in any written order or confirmation provided by the Purchaser. The giving by the Purchaser of any delivery instructions for the Goods or any part thereof or the acceptance by the Purchaser of delivery of the Goods or any part thereof or any conduct by the Purchaser in confirmation of the transaction after receipt by the Purchaser of the Seller's acceptance shall constitute unqualified acceptance by the Purchaser of these conditions.

3.1 All reasonable efforts will be made by the Seller to complete and deliver the Goods within seven (7) days of notifying the Purchaser that the Goods are ready for delivery but time shall not be the essence and no penalty or damages will be incurred by the Seller for late delivery or failure to deliver the Goods or any part thereof due to -

(a) acts of God, strikes, lockouts, trade disputes, fire, breakdowns, interuption of transport, government action or any other cause whatsoever outside the Seller's control, or

(b) any acts, omissions, neglect or default of the Seller, its servants or agents, or

(c) any breach by the Seller, its servants or agents of any term of the contract

3.2 The Purchaser shall accept delivery in accordance with any quotation and if the Purchaser fails to do so within fourteen (14) days after being requested to accept delivery by the Seller, the Goods shall be deemed to have been delivered upon the expiration of that period and shall be thereafter at the risk of the Purchaser, who shall pay the Seller upon demand for costs incurred thereafter by the Seller in relation to the Goods provided that the Seller is under no obligation to store or insure or care for the Goods after that expiration.

4.1 The Purchaser may provide specifications to the Seller with the written order for the Goods.

4.2 If before the manufacture of the Goods the Manufacturer modifies its specification the modified specification shall be substituted for any specification in the quotation and -

(a) the Purchaser shall accept the Goods as manufactured in accordance with the modified specification in satisfaction of the Sellers obligations under the Contract.

(b) the Purchaser shall pay any increase in the Manufacturer's prices resulting from such modification.

5.1 Title to the property in the Goods shall not pass to the Purchaser until the Purchaser has paid to the Seller the purchase price of the Goods (that is, the purchase price and any additional charges)

5.2 Until payment of the purchase price (or all monies outstanding), the Purchaser is to insure the Goods and store them with all proper care. Any insurance claims in respect of damage to or destruction of the Goods are hereby assigned to the Seller. The Purchaser hereby indemnifies the Seller against any loss or damage to the Goods howsoever arising.

5.3 The Purchaser (if a reseller) is entitled to resell the Goods in the usual course of its business as the fiduciary agent of the Seller but, in such case, is to be entitled to receive from the proceeds of such sub-sale payment of the purchase price (or all money outstanding), which proceeds, to the extent of the amount of the purchase price outstanding (or all monies outstanding), shall be held by the Purchaser in a separate trust account in trust for the Seller.

5.4 The Purchaser must, on request, disclose to the Seller all relevant information regarding the Goods and any sub-sale by the Purchaser.

5.5 The Purchaser must inform the Seller immediately of any levy of execution or attempt to levy execution by any third party against the Goods the title of which is reserved to the Seller hereunder.

5.6 This clause will also apply where the Goods supplied to the Purchaser are subsequently incorperated into or attached to other goods, and remain identifiable and can be removed from the other goods without causing damage.

5.7 If the Purchaser fails to pay the Seller the purchase price or any other expenses under clause 11 herein, the Seller shall be entitled to retake possession of the Goods in accordance with clause 11.4(b).

The risk of any loss or damage to or deterioration in the Goods from whatever cause arising shall pass to the Purchaser and be borne by him immediately upon delivery into the hands of the Purchaser, his agent or employee or deemed delivery pursuant to Clause 3.

The Seller reserves the right to retain the Goods until payment has been received in full.

In the case of Goods which are supplied to the Seller hereunder to a person or corperation (referred to in this condition as "the Consumer") who or which is a consumer within the meaning of the Trade Practices Act 1974.

(a) except for any other conditions or warranties issued in writing by the Seller and except for those conditions and warranties implied by the Trade Practices Act or other sale of goods or consumer protection legislation which may not be excluded, the consumer agrees that it has not relied on any inducement, representation or statement made by or on behalf of the Seller in acquiring the Goods and that there are no implied conditions or warranties herein or collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of the Seller).

(b) to the extent that the Goods which are the subject of these provisions are the goods of a kind not ordinarily aquired for personal, domestic or household use or consumption (within the meaning of the Trade Practices Act) the liability of the Seller to the Consumer for breach of any warranty or condition (other than a warranty or condition implied by Section 69 of the Trade Practices Act) or for breach of any duty of care shall be limited, at the option of the Seller to -
(i) the replacement of the Goods or the supply of equivalent goods.
(ii) the repair of the Goods.
(iii) the payment of the cost of replacing the Goods or acquiring equivalent goods, or
(iv) the payment of the cost of having the goods repaired and (without limiting the generality of the foregoing) shall not include any liability in respect of arising out of or in connection with any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred as a result of such breach; and

(c) the Goods delivered to the Seller remain at the Consumer's risk. The Seller shall not be liable for any loss or damage to Goods in the Seller's possession whether caused by the negligence of any of the Seller's servants, agents or employees or any other cause whatsoever.

In the case of Goods which are supplied by the Seller hereunder to a person or corperation (hereinafter in this Condition referred to as the "Purchaser") who or which is not a consumer within the meaning of the Trade Practices Act 1974.

(a) except as provided herein, the Purchaser agrees that it has not relied on any inducement, representation or statement made by or on behalf of the Seller in acquiring the Goods and that there no implied conditions or warranties herein and no collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of the Seller):

(b) any claim for defective goods must be made in writing to the Seller within seventy-two (72) hours after delivery. The Goods in respect of which any such claim is made shall be preserved intact as delivered for a period of fourteen (14) days after such notice is given within which time the Seller shall have the right to attend and inspect the same. Any breach of this condition shall disentitle the Purchaser to any consideration of such claim. The Seller shall not be liable to make good any expenditure, damages and/or loss arising out of any user or dealing with the Goods howsoever such expenditure, damages or loss shall arise and whether from any defect in the Goods or otherwise the Seller's liability being strictly limited to further repair of the Goods on the Goods being returned to the Seller; and

(c) the Seller shall not be liable for any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the Purchaser. The Goods delivered to the Seller remain at the Purchasers risk. The Seller shall not be liable for any loss or damage to the Goods in the Seller's possession whether caused by the negligence of any of the Seller's servants, agents or employees or any other cause whatsoever.

The Purchaser shall within fourteen (14) days of delivery or deemed delivery of the Goods give notice in writing to the Seller of any matter or thing by reason whereof the Purchaser alleges that the Goods are not in accordance with the Contract, failing which the Goods shall be deemed to be in all respects in accordance with the Contract and the Purchaser shall be bound to accept and pay for the Goods accordingly. Where the Goods are returned within the period of fourteen (14) days, the Seller shall refund the price (if already paid) less 10% thereof.

11.1 Unless otherwise stated in writing, all quoted prices are for delivery at the place specified in the quotation (if any) and are payable without discount or allowance.

11.2 The Purchaser shall pay to the Seller in addition to the quoted or list price -

(a) all packing costs

(b) all taxes, duties and charges whatsoever imposed by any government or other authority and payable in respect or by reason of the sale or delivery of the goods or any part thereof whether or not the same were payable at the date of the quotation or order and including (without prejudiceto the generality of the foregoing) charges for import, export or currency licences, sales consumption, turnover or purchase taxes and duties of customs and excise.

(c) the amount of any increase in the cost to the Seller of supplying or delivering the Goods or any part thereof occurring after the date of quotation or order for any reason whatsoever including (without prejudice to the generality of the foregoing) changes in Manufacturer's prices, rates of exchange, landing charges and port dues and the cost of carriage, insurance and handling.

(d) any increase in the cost to the Seller arising from delivery of the Goods to a place at a time or in a manner other than that specified in the quotation or order resulting from any request made by the Purchaser or any other reason whatsoever beyond the control of the Seller.

(e) any excess over the amount allowed by the Seller in quoting the price actually incurred by the Seller in respect of freight and insurance or port dues or handling charges at any port to which the Goods are to be shipped which is not regularly served without trans-shipment by a line of steamers, and

(f) any excess over the amount allowed by the Seller in quoting the price for supplying or delivering the Goods where such excess results from any error or omission on the part of the Seller, its servants or agents affecting the price or its calculation.

11.3 The purchase price shall be paid by the Purchaser to the Seller in full within seven (7) days of the delivery notification and the Purchaser shall not be entitled to withhold payment or make any deduction from the price in respect of any set-off or counter-claim.

11.4 If the Purchaser fails to pay the purchase price or any other expenses required under Clause 11.3 as aforesaid, the Seller shall be entitled (without prejudice to any other right hereunder) -

(a) to charge interest thereon from the date when due until payment at the rate of two per centum (2%) above the maximum overdraft rate of the Seller's bankers for the time being in force, and

(b) to give the Purchaser written notice that the Seller intends to retake possession of the Goods within a stated period being not less than seven (7) days. If the Purchaser fails within that period to pay the purchase price (and interest thereon) the Seller shall be entitled to retake possession of the Goods (and for that purpose the Purchaser irrevocably licenses the Seller to enter upon any premises where the Goods may be situated for the purpose of removing the Goods and the Purchaser indemnifies the Seller against any action claim or demand arising out of any act lawfully done by the Seller in the exercise of its powers hereunder) and to resell the Goods and shall be released from all obligations under the Contract and the Purchaser shall pay the Seller -
(i) charges for and incidental to the storage and handling of the Goods until their delivery under the resale.
(ii) interest on the purchase price of the Goods from the date when due until payment upon their resale at the rate of two per centum (2%) above the maximum overdraft rate of the Seller's bankers for the time being in force.
(iii) the amount, if any, by which the purchase price on resale is less than the purchase price hereunder.
(iv) the balance of any expenses incurred by the Seller in making delivery under resale of the Goods over and above normal delivery expenses incurred by the Seller on such delivery, and
(v) the Seller's gross profit on the sale to the Purchaser who acknowledges that the resale has deprived the Seller of a probable customer for other like goods.

(a) The Seller shall not be responsible or liable for damage, injury or loss of any kind whatsoever, to any property or persons howsoever caused arising from the installation or use of the Goods whether such loss arises directly or indiectly

(b) The Purchaser shall indemnify and hold harmless the Seller for any loss or damage caused by the Seller, its agents, sub-contractors or employees in removing the Goods in accordance with Clause 11.4 unless such loss or damage was caused by the negligence of the Seller, its agents, sub-contractors or employees.

If it is necessary for the lawful fulfilment of the Contract -

(a) for the Purchaser to hold or obtain any import, export, currency or other licence, consent or authority ("licence"), the Purchaser shall be obliged to obtain the licence, or

(b) for the Seller to hold or obtain any such licence, the Seller shall apply for it but if refused, this Contract shall forthwith come to an end and neither the Seller nor Purchaser shall be under any liability in respect thereof.

The Contract shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales and the parties shall submit to the jurisiction of the Courts of that State in respect of any dispute arising out of the Contract.

If the Purchaser makes default in or commits a breach of the Contract or if any distress or execution is levied upon the Purchaser's property or assets, or if the Purchaser makes or offers to make any arrangement or composition with creditors or commits any act of bankrupcy, or if any petition or order in bankrupcy is presented or made against him, or if the Purchaser is a limited company and any resolution or petition to wind up the company's business (other than for the purpose of reconstruction) is passed or presented or if a receiver or any provisional liquidator or official manager of such company's undertaking property or assets or any part thereof is appointed, the Seller shall have the right forthwith to terminate the Contract by written notice posted to the Purchaser's last known address without prejudice to any claim or right the Seller may otherwise have, make or exercise against the Purchaser or otherwise in respect of the Contract.