1.
Definitions
1.3 “Guarantor”
means that person (or persons), or entity who agrees herein to be liable for
the debts of the Customer on
a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the
Company to the Customer (and where the context so permits shall include any
supply of Services as hereinafter defined).
1.5 “Services” shall mean all services
supplied by the Company to the Customer and includes any advice or
recommendations (and where the context so permits shall include any supply of
Goods as defined supra).
1.6 “Price” shall mean the cost of the Goods
as agreed between the Company and the Customer subject to clause 4 of this
contract.
2.
Acceptance
2.1 Any instructions received by the Company
from the Customer for the supply of Goods and/or the Customer’s acceptance of
Goods supplied by the Company shall constitute acceptance of the terms and
conditions contained herein.
2.2 Where more than one Customer has entered
into this agreement, the Customers shall be jointly and severally liable for
all payments of the Price.
2.3
Upon
acceptance of these terms and conditions by the Customer the terms and
conditions are irrevocable and can only be rescinded in accordance with these
terms and conditions or with the written consent of the manager of the Company.
2.4 None of the Company’s agents or
representatives are authorised to make any representations, statements,
conditions or agreements not expressed by the manager of the Company in writing
nor is the Company bound by any such unauthorised statements.
2.5 The Customer undertakes to give the
Company not less than fourteen (14) days prior written notice of any proposed
change in the Customer’s name and/or any other change in the Customer’s details
(including but not limited to, changes in the Customer’s address, facsimile
number, or business practice).
3.
Goods
3.1 The Goods are as described on the invoices
and quotation as provided by the Company to the Customer.
4.
Price And Payment
4.1 At the Company’s sole discretion;
(a) The Price shall be as indicated on
invoices provided by the Company to the Customer in respect of Goods supplied;
or
(b) The Price shall be the Company’s current
price at the date of delivery of the Goods according to the Company’s current
Price list; or
(c) The Price of the Goods shall (subject to
clause 4.2) be the Company’s quoted Price which shall be binding upon the
Company provided that the Customer shall accept in writing the Company’s
quotation within fourteen (14) days.
4.2 Any variation from the plan of scheduled
works or specifications will be charged for on the basis of the Company’s
quotation and will be shown as extras on the invoice. Payment for all extras must be made in full
at their time of completion.
4.3 At the Company’s sole discretion a deposit
may be required. The deposit amount or percentage of the Price will be
stipulated at the time of the order of the Goods and shall become immediately
due and payable.
4.4 Time for payment for the Goods shall be of
the essence and will be stated on the invoice, quotation or any other order
forms. If no time is stated then payment
shall be due thirty (30) days following the date of the invoice.
4.5 The Company may withhold delivery of the
Goods until the Customer has paid for them, in which event payment shall be
made before the delivery date.
4.6 Payment will be made by cheque, or by bank
cheque, or by credit card, or by direct credit, or by any other method as
agreed to between the Customer and the Company.
4.7 The Price shall be increased by the amount
of any GST and other taxes and duties, which may be applicable, except to the
extent that such taxes are expressly included in any quotation given by the
Company.
5.
Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made either
to the Customer’s nominated address or at the Company’s address. The Customer
shall make all arrangements necessary to take delivery of the Goods whenever
they are tendered for delivery. In the event that the Company is unable to
effect delivery at the time arranged then a redelivery fee may be charged and
shall become immediately due and payable.
5.2 Delivery of the Goods to a carrier, either
named by the Customer or failing such naming to a carrier at the discretion of
the Company for the purpose of transmission to the Customer, is deemed to be a
delivery of the Goods to the Customer.
5.3 The costs of carriage and any insurance
which the Customer reasonably directs the Company to incur shall be reimbursed
by the Customer (without any set-off or other withholding whatever) and shall
be due on the date for payment of the Price. The carrier shall be deemed to be
the Customer’s agent.
5.4 Where there is no agreement that the
Company shall send the Goods to the Customer, delivery to a carrier at limited
carrier’s risk at the expense of the Customer is deemed to be delivery to the
Customer.
5.5 The Company may deliver the Goods by
separate instalments (in accordance with the agreed delivery schedule). Each
separate instalment shall be invoiced and paid for in accordance with the
provisions in this contract of sale.
5.6 Delivery of the Goods to a third party
nominated by the Customer is deemed to be delivery to the Customer for the
purposes of this agreement.
5.7 The Customer shall take delivery of the
Goods tendered notwithstanding that the quantity so delivered shall be either
greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not
exceed 5%, and
(b) the Price shall be adjusted pro rata to the
discrepancy.
5.8 The failure of the Company to deliver
shall not entitle either party to treat this contract as repudiated.
5.9 The Company shall not be liable for any
loss or damage whatsoever due to failure by the Company to deliver the Goods
(or any of them) promptly or at all.
6.
Risk
6.1 If the Company retains property in the
Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or
destroyed prior to property in them passing to the Customer, the Company is entitled,
without prejudice to any of its other rights or remedies under these Terms and
Conditions of Trade (including the right to receive payment of the balance of
the Price for the Goods), to receive all insurance proceeds payable for the
Goods. This applies whether or not the Price has become payable under the
Contract. The production of these terms
and conditions by the Company is sufficient evidence of the Company’s rights to
receive the insurance proceeds without the need for any person dealing with the
Company to make further enquiries.
7. Customer’s Disclaimer
7.1 The Customer hereby disclaims any right to
rescind, or cancel the contract or to sue for damages or to claim restitution
arising out of any misrepresentation made to him by any servant or agent of the
Company and the Customer acknowledges that he buys the Goods relying solely
upon his own skill and judgement and
that the Company shall not be bound by nor responsible for any term, condition,
representation or warranty other than the warranty given by the manufacturer
which warranty shall be personal to the Customer and shall not be transferable
to any subsequent Customer.
8. Defect/Returns
8.1 The Customer shall inspect the Goods on
delivery and shall within seven (7) days of delivery notify the Company of any
alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Customer shall
afford the Company an opportunity to inspect the Goods within a reasonable time
following delivery if the Customer believes the Goods are defective in any way.
Any such inspection shall be at the Customer’s cost (including, but not limited
to, the cost of returning the Goods to the Company’s nearest repair agent, or
the Company’s factory), unless the Company agrees that the Goods are defective.
If the Customer shall fail to comply with these provisions, the Goods shall be
conclusively presumed to be in accordance with the terms and conditions and
free from any defect or damage.
8.2 For defective Goods, which the Company has
agreed in writing that the Customer is entitled to reject, the Company’s
liability is limited to either (at the Company’s discretion) replacing the
Goods or repairing the Goods provided that:
(a) the Customer has complied with the
provisions of clause 8.1;
(b) the Goods are returned at the Customer’s
cost within twenty one (21) days of the delivery date;
(c) the Company will not be liable for Goods
which have not been stored or used in a proper manner;
(d) the Goods are returned in the condition in
which they were delivered and with all packaging material, brochures and
instruction material in as new condition as is reasonably possible in the
circumstances.
8.3 The Company may (in its discretion) accept the Goods for credit
but this may incur a handling fee of 10% of the value of the returned Goods
plus any freight.
9.
Warranty
9.1 Subject to the conditions of warranty set
out in Clause 9.2 the Company warrants that if any defect in any workmanship
manufactured by the Company becomes apparent and is reported to the Company
within the stated period of the warranty included with the Goods at time of
purchase (time being of the essence) then the Company will (at the Company’s
sole discretion) repair the defect or replace the workmanship.
9.2 The conditions applicable to the warranty
given by Clause 9.1 are:
(a) The warranty shall not cover any defect or
damage which may be caused or partly caused by or arise through:
i)
Failure
on the part of the Customer to properly maintain any Goods; or
ii) Failure on the part of the Customer to
follow any instructions or guidelines provided by the Company; or
iii) Any use of any Goods otherwise than for
any application specified on a quote or order form; or
iv) The continued use of any Goods after any
defect becomes apparent or would have become apparent to a reasonably prudent
operator or user; or
v) Fair wear and tear, any accident or act of
God.
(b) The warranty shall cease and the Company shall
thereafter in no circumstances be liable under the terms of the warranty if the
workmanship is repaired, altered or overhauled without the Company’s consent.
(c) In respect of all claims the Company shall not be liable to
compensate the Customer for any delay in either replacing or repairing the
workmanship/Goods or in properly assessing the Customer’s claim.
9.3 For Goods not manufactured by the Company,
the warranty shall be the current warranty provided by the Original Equipment Manufacturer
(OEM) of the Goods. The Company shall be under no liability whatsoever, except
for the express conditions as detailed and stipulated in the OEM’s warranty.
10. The
Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have
the affect of contracting out of any applicable provisions of the Commonwealth
Trade Practices Act 1974 or the Fair Trading Acts in each of the States and
Territories of Australia, except to the extent permitted by those Acts where
applicable.
11.1 Where the Company has designed or drawn
Goods for the Customer, then the copyright in those designs and drawings shall
remain vested in the Company, and shall only be used by the Customer at the
Company’s discretion.
11.2 Conversely, in such a situation, where the
Customer has supplied drawings, the Company in its sale conditions may look for
an indemnity [the specifications and design of the Goods (including the
copyright, design right or other intellectual property in them) shall as
between the parties be the property of the Company].
11.3 Where any designs or specifications have
been supplied by the Customer for manufacture by or to the order of the Company
then the Customer warrants that the use of those designs or specifications for
the manufacture, processing, assembly or supply of the Goods shall not infringe
the rights of any third party.
11.4 The Customer warrants that all designs or
instructions to the Company will not cause the Company to infringe any patent,
registered design or trademark in the execution of the Customer’s order.
12.1 Interest on overdue invoices shall accrue
from the date when payment becomes due daily until the date of payment at a
rate of 2.5% per calendar month and shall accrue at such a rate after as well
as before any judgement.
12.2 If the Customer defaults in payment of any
invoice when due, the Customer shall indemnify the Company from and against all
the Company’s costs and disbursements including on a solicitor and own client
basis and in addition all of the Company’s nominee’s costs of collection.
12.3 Without prejudice to any other remedies
the Company may have, if at any time the Customer is in breach of any
obligation (including those relating to payment), the Company may suspend or
terminate the supply of Goods to the Customer and any of its other obligations
under the terms and conditions. The
Company will not be liable to the Customer for any loss or damage the Customer
suffers because the Company exercised its rights under this clause.
12.4 If any account remains unpaid at the end
of the second month after supply of the goods or services the following shall
apply: an immediate amount of the
greater of $20.00 or 10.00% of the amount overdue shall be levied for
administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Company becomes
overdue, or in the Company’s opinion the Customer will be unable to meet its
payments as they fall due; or
(b) the Customer becomes insolvent, convenes a
meeting with its creditors or proposes or enters into an arrangement with
creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator
(provisional or otherwise) or similar person is appointed in respect of the
Customer or any asset of the Customer;
then without prejudice to the Company’s
other remedies at law
(i) the Company shall be entitled to cancel all or any part of any
order of the Customer which remains unperformed in addition to and without
prejudice to any other remedies; and
(ii) all amounts owing to the Company shall,
whether or not due for payment, immediately become payable.
13. Title
13.1 It is the intention of the Company and agreed by the Customer that
property in the Goods shall not pass until:
(a) The Customer has paid all amounts owing
for the particular Goods, and
(b) The Customer has met all other obligations
due by the Customer to the Company in respect of all contracts between the
Company and the Customer, and that the Goods shall be kept separate until the
Company shall have received payment and all other obligations of the Customer
are met.
13.2 It is further agreed that:
(a) Until such time as ownership
of the Goods shall pass from the Company to the Customer the Company may give
notice in writing to the Customer to return the Goods or any of them to the
Company. Upon such notice the rights of
the Customer to obtain ownership or any other interest in the Goods shall
cease.
(b) If the Customer fails to return the Goods
to the Company then the Company or the Company’s agent may enter upon and into
land and premises owned, occupied or used by the Customer, or any premises as
the invitee of the Customer, where the Goods are situated and take possession
of the Goods, without being responsible for any damage thereby caused.
14. Security And Charge
14.1 Notwithstanding anything to the contrary contained herein or any
other rights which the Company may have howsoever:
(a) Where the Customer and/or the Guarantor
(if any) is the owner of land, realty or any other asset capable of being
charged, both the Customer and/or the Guarantor agree to mortgage and/or charge
all of their joint and/or several interest in the said land, realty or any
other asset to the Company or the Company’s nominee to secure all amounts and
other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge
and agree that the Company (or the Company’s nominee) shall be entitled to
lodge where appropriate a caveat, which caveat shall be released once all
payments and other monetary obligations payable hereunder have been met.
(b) Should the Company elect to proceed in any
manner in accordance with this clause and/or its sub-clauses, the Customer
and/or Guarantor shall indemnify the Company from and against all the Company’s
costs and disbursements including legal costs on a solicitor and own client
basis.
(c) To give effect to the provisions of clause
[14.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any)
do hereby irrevocably nominate constitute and appoint the Company or the
Company’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney
to execute mortgages and charges (whether registerable or not) including such
other terms and conditions as the Company and/or the Company’s nominee shall
think fit in his/her/its/their absolute discretion against the joint and/or
several interest of the Customer and/or the Guarantor in any land, realty or
asset in favour of the Company and in the Customer’s and/or Guarantor’s name as
may be necessary to secure the said Customer’s and/or Guarantor’s obligations
and indebtedness to the Company and further to do and perform all necessary and
other acts including instituting any necessary legal proceedings, and further
to execute all or any documents in the Company’s absolute discretion which may
be necessary or advantageous to give effect to the provisions of this clause.
15.
Cancellation
15.1 The Company may cancel these terms and
conditions or cancel delivery of Goods at any time before the Goods are
delivered by giving written notice. The
Company shall not be liable for any loss or damage whatsoever arising from such
cancellation.
16. Privacy
Act 1988
16.1 The Customer and/or the Guarantor/s agree
for the Company to obtain from a credit-reporting agency a credit report
containing personal credit information about the Customer and Guarantor/s in
relation to credit provided by the Company.
16.2 The Customer and/or the Guarantor/s agree
that the Company may exchange information about Customer and Guarantor/s with
those credit providers named in the Application for Credit account or named in
a consumer credit report issued by a reporting agency for the following
purposes:
(a) To assess an application by Customer;
(b) To notify other credit providers of a
default by the Customer;
(c) To exchange information with other credit
providers as to the status of this credit account, where the Customer is in
default with other credit providers; and
(d) To assess the credit worthiness of
Customer and/or Guarantor/s.
16.3 The Customer consents to the Company being
given a consumer credit report to collect overdue payment on commercial credit
(Section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that Personal Data
provided may be used and retained by the Company for the following purposes and
for other purposes as shall be agreed between the Customer and Company or
required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and or Goods by the
Company, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the
Customer’s credit, payment and/or status in relation to provision of
Services/Goods;
(d) processing of any payment instructions,
direct debit facilities and/or credit facilities requested by Customer; and
(e) enabling the daily operation of Customer’s
account and/or the collection of amounts outstanding in the Customer’s account
in relation to the Services and Goods.
16.5 The Company may give information about the
Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about
the Customer; and or
(b) allow the credit reporting agency to
create or maintain a credit information file containing information about the
Customer.
17. Unpaid Company’s Rights To Dispose Of Goods
17.1 In the event that:
(a) the Company retains possession or control
of the Goods; and
(b) payment of the Price is due to the
Company; and
(c) the Company has made demand in writing of
the Customer for payment of the Price in terms of this contract; and
(d) the Company has not received the Price of
the Goods,
then, whether the property in the Goods
has passed to the Customer or has remained with the Company, the Company may
dispose of the Goods and may claim from the Customer the loss to the Company on
such disposal.
18. Lien
18.1 Where the
Company has not received or been tendered the whole of the price, or the
payment has been dishonoured, the Company shall have:
(a)
a lien on the goods;
(b)
the right to retain them for the price while the
Company is in possession of them;
(c)
a right of stopping the goods in transit whether or
not delivery has been made or ownership has passed; and
(d)
a right of resale,
(e)
the foregoing right of disposal,
provided that the lien of the Company
shall continue despite the commencement of proceedings or judgement for the
price having been obtained
19. Demonstration
Goods
19.1 For demonstration Goods, which the Company
has agreed to provide to the Customer, the following will apply
(a)
the
demonstration period is for one (1) week unless otherwise agreed;
(b)
a
full covering payment is required before shipping, either paid by cheque and/or
presentation of credit card details. Credit card will be authorised by the Bank
before the demonstration unit is shipped, but not processed during the
demonstration period. Cheque payment
will be cleared by the bank before the demonstration unit is shipped and later
fully refunded if the Customer does not wish to proceed with the purchase; and
(c)
delivery
costs will be the responsibility of the Company and
(d)
return
freight and insurance costs (including, but not limited to, insurance of the
Goods for the duration of the demonstration and insurance in transit) will be
the responsibility of the Customer; and
(e)
should
purchase of the Goods proceed after receipt of the demonstration model, the
demonstration model would be available at a specified price or returned to the
Company with an order for a new unit.
20. General
20.1 If any provision of these terms and conditions shall be invalid,
void or illegal, or unenforceable the validity existence, legality and
enforceability of the remaining provisions shall not be affected, prejudiced or
impaired.
20.2 All Goods supplied by the Company are subject to the laws of
20.3 The Company shall be under no liability whatsoever to the Customer
for any indirect loss and/or expense (including loss of profit) suffered by the
Customer arising out of a breach by the Company of these terms and conditions.
20.4 In the event of any breach of this contract by the Company the
remedies of the Customer shall be limited to damages. Under no circumstances
shall the liability of the Company exceed the Price of the Services.
20.5 The Customer shall not set off against the Price amounts due from
the Company.
20.6 The Company may license or sub-contract all or any part of its
rights and obligations without the Customer’s consent.
20.7 The Company reserves the right to review these terms and conditions
at any time and from time to time. If,
following any such review, there is to be any change in such terms and
conditions, that change will take effect from the date on which the Company notifies
the Customer of such change.
20.8 Neither party shall be liable for any default due to any act of God,
war, terrorism, strike, lock out, industrial action, fire, flood, drought,
storm or other event beyond the reasonable control of either party.