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TERMS
AND CONDITIONS OF SALE DEFINITIONS “Seller”
means Transformers and Coils Australia. “Buyer”
means the purchaser of the goods hereunder. “Price”
and “Goods” are those stated in Seller’s Quotation. “GST”
means any goods and services tax whether payable under the ‘Goods and Services
Tax Act 1999’ or otherwise. CONTRACT Any
contract for the sale of Goods by Seller to Buyer (“Contract”) is upon and
subject to these conditions and the terms on the reverse hereof and no others,
unless other written terms are signed by a duly authorised representative of
seller. No order shall be binding
on the Seller unless and until Seller accepts it in writing.
If Seller gives no Quotation or written acceptance all deliveries are
made subject to these conditions. QUOTATIONS Any
quotation is an offer to sell on these Conditions only and if accepted is
accepted without qualification, unless otherwise agreed in writing, will lapse
without notice after one week from the date it is made.
Any quotation is subject to availability of Goods in stock. ORDERS All
orders are to be in writing. Orders
must include the Buyer’s specifications or the Seller’s part number and
Seller’s quotation reference number. PRICE All
Goods are sold at the price current at the time of dispatch notwithstanding any
prior statements of price and all costs and charges for freights and handling
are by Buyer (unless otherwise stated on the reverse hereof).
Seller reserves the right to apply the extent any increase in costs to
the amount charged for any Goods due to variations in suppliers’ costs.
The Seller further reserves the right to include a set up fee for all
quantities below 100 items ordered. Special
delivery charges incurred in complying with Buyer’s instructions will be
charged as an extra to Buyer. PAYMENT All payments are
to be made in Australian Dollars. Unless
and until the Seller opens a Credit Account in favor of the Buyer, orders shall
only be accepted by the Seller on the basis of payment for the order being made
at the time the order is placed. The
Seller shall only accept a written order by Buyer with an ABN on the basis of a
50% payment for the order or bank letter of credit being made at the time the
order is placed. The balance paid
on pick up or before delivery of order. Credit
Account Buyers will receive a Tax Invoice with delivery of goods or by mail
after delivery. The price quoted on
the Tax Invoice is payable net cash not later than the “Payment Due by” date
quoted on the Tax Invoice. Thereafter
any part of the price unpaid shall bear interest from such date until payment at
a rate to the Commonwealth Bank Corporate Overdraft Reference Rate most recently
published before that date. All
Goods purchased within Australia are subject to the “Goods and Services Act of
Australia 1999”. RISK
AND TITLE The Risk in
respect of all Goods shall pass to the Buyer upon delivery, notwithstanding that
the Seller may arrange and charge for the costs of carriage.
Delivery of the Goods to a carrier constitutes delivery to the Buyer.
The Seller will not in any circumstances be liable for damage, breakage
or loss occurring after the Goods have been so delivered. The Seller shall retain title to the Goods until payment in
accordance with the Payment clause has been made and the relevant funds cleared
by the Seller’s Bank. DELIVERY Where the Seller
is responsible for arranging the transport of the Goods to the Buyer’s
premises then the Seller may select the route, method and agency of
transportation and has the right of stopping the Goods in transit. The Seller shall endeavour to comply with any date for
delivery of the Goods but unless the Contract expressly otherwise provides, such
date shall not be binding. If the
Seller fails to deliver the Goods by such date such failure shall not constitute
a breach of the Contract and the Buyer shall not be entitled to any remedy in
respect of it. SUSPENSION If the seller is
unable to supply goods or any part thereof due to circumstances beyond its
control, Seller may suspend performance of the contract or make partial
deliveries for so long as such circumstances exist, provided that if performance
is suspended for more than three consecutive calendar months, Buyer or Seller
may by written notice terminate the Contract or cancel any outstanding parts
thereof. In such circumstances
Buyer shall pay for all work done and materials used by Seller to the date of
termination. Seller shall not be
liable for any direct or consequential loss or damage suffered by Buyer as a
result of Seller’s inability to perform its obligations in such circumstances. LIABILITY
LIMITATION Seller shall not
be liable in contract or in tort or otherwise howsoever for any loss or damage
including consequential loss or damage arising from delay in manufacture or
delivery howsoever caused or for any delay in failure of delivery after goods
have been dispatched from Seller’s work (unless otherwise agreed by Seller in
writing) DEFECTIVE
GOODS Seller
undertakes at its option to refund the price of or to repair or replace, free of
charge any Goods manufactured and supplied by it which are returned carriage
paid to Seller and which are shown to Seller’s satisfaction to be defective
(provided that they have been properly stored, assembled, maintained, not
combined with other goods, and used in accordance with Seller’s directions,
and fair wear and tear excepted) by reason of faulty material or workmanship
within ninety (90) days from the date of their original dispatch.
Seller shall not be liable for any loss or damage caused by, or arising
out of, any alteration or modification or any change whatsoever to the Goods, or
any part thereof, by Buyer or third party, without Seller’s prior written
consent. Subject to “Statutory
Liability” clause, Seller shall not otherwise be liable for any loss or damage
whether direct, indirect or consequential incurred by buyer resulting indirectly
from a defect in the Goods, or loss resulting there from including loss of
profits, loss of production, or any other consequential loss or damage, or
incurred in consequence of any negligence or default on part of Seller, its
servants or agents in the manufacture or supply of the Goods. CONFIDENTIAL
INFORMATION AND INTELLECTUAL PROPERTY Unless otherwise
agreed in writing, patterns, jigs, tools, fixtures and any other plans, drawings
and specifications (“Information”) manufactured or prepared by Seller in
relation to any Contract shall remain Seller’s property notwithstanding any
charge therefore Seller may, in its discretion, make to Buyer and Seller
reserves all proprietary and industrial property rights vested in it in relation
to such information. Buyer shall
not without Seller’s written consent deal in any way with the information and
when in possession of any information shall as promptly as possible and in any
case immediately upon demand return it to Seller.
Where the Seller at Buyer’s request uses Buyer’s patterns, jigs,
tools or fixtures Buyer shall be liable for any repairs, alterations or
replacement necessary thereto or for any damage or loss (unless occurring
exclusively due to the negligence of Seller, its servants or agents) whether due
to fair wear and tear, inherent unsuitability for the production of satisfactory
Goods or otherwise. Unless Seller
agrees in writing to work to Buyer’s drawings or specifications, Seller’s
normal tolerances and material specifications shall apply. Seller and its suppliers shall have no liability to Buyer in
connection with any claim that Buyer’s intended or actual use or resale of any
goods either as sold or in conjunction with other materials constitutes an
infringement of any proprietary or industrial property rights of third parties
and Buyer agrees to indemnify Seller against all such claims in relation to the
production or sale of any Goods in conformity with Buyer’s specification or
instructions. REPRESENTATIONS Subject to
“Statutory Liability” clause, Buyer assumes responsibility for the
suitability or fitness for any particular purpose of Goods, and acknowledges
that any statement or representation as to the suitability or fitness of goods
is a statement of opinion only and that no reliance is placed on it. It is expressly agreed that any technical advice furnished by
Seller is, unless furnished pursuant to an express agreement supported by
valuable consideration, given gratis and accepted at Buyer’s risk and seller
assumes no obligation or liability or any advice given or result obtained by
Buyer. BUYER’S
PREMISES If Seller’s
employees or agents work on Buyer’s premises or elsewhere at Buyer’s request
in relation to the manufacture, supply, installation or use by Buyer of the
Goods, Seller shall not be liable to Buyer in respect of any claims for damage
to Buyer’s property: Except where the liability incurred is wholly and
exclusively due to the negligence of Seller’s employee or agent; and Seller
shall not be liable for any indirect or consequential loss or damage whatsoever
or howsoever arising and whether suffered by Buyer or any third party; and
Seller shall in no event be liable for any amount in excess of the price of the
Goods. BUYER’S
DEFAULT If Buyer commits
a breach of the Contract or any of its obligations; or the Buyer threatens to
cease to carry on its business or is unable to pay its debts within the meaning
of section 460(2) of the Corporation Law or any amending legislation; or a
receiver, liquidator, trustee in bankruptcy or official manager or administrator
of the Buyer or any or its business or property is appointed.
Seller may terminate the Contract forthwith and upon written notice of
such termination posted to Buyer’s last known address any Contract shall be
deemed to have been terminated without prejudice to any claim or right Seller
might otherwise make or have against Buyer but it is nevertheless agreed that
Buyer shall pay Seller at the Contract rate for all the work done, materials
used and Goods supplied up to an including the rate of termination. WAIVER Waiver by the
Seller of any specific default by the Buyer under these Conditions of Sale, or a
failure of the Seller to cancel the sale or any part thereof when such right
arises, shall not constitute a waiver by the Seller or any of the Conditions of
Sale except such defaults as are specifically waived, and then only in respect
to the actual defaults. LIEN Seller shall in
respect of all unpaid debts or moneys due from Buyer have a general lien on all
Goods and property of Buyer in its possession and may on the expiration of
fourteen (14) days’ notice to Buyer dispose of such goods or property as it
thinks fit and apply the proceeds towards reduction of such debts. STATUTORY
LIABILITY Nothing in this
Contract shall exclude, restrict or modify nay term, condition, warranty or
liability implied into this Contract by stature, where to do so would render any
provision of this Contract void or Seller subject to penalties.
Subject to that, any implied conditions warranties and liabilities,
including liability for consequential loss and for loss arising from negligence,
are hereby excluded. Where it is legally permitted, any remaining liability
implied by statute or resulting from breach of any condition or warranty implied
by statute is limited to repair or replacement of the Goods at Seller’s
option. FORCE
MAJEURE If by reason of
Act of God, war, government control, storm, fire, tempest, strike, lockout or
any other cause beyond its control Seller is prevented from performing any under
this contract shall be entitled to suspend deliveries and, at its option, should
such suspension continue for a period of six months, by written notice to cancel
the unfilled part of the Contract. GOVERNING
LAW These conditions
and any Contract made between Seller and Buyers shall be governed by and
construed in all respects in accordance with the laws of the States and
Territories of Australia and any disputes arising there under shall be submitted
to the jurisdiction of the Courts of the States or Territories and for such
purpose the parties hereby irrevocably submit to the non-exclusive jurisdiction
of those Courts. |
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