Standard terms and conditions of sale
In these conditions:
(a) `Seller' means SPLat Controls Pty. Ltd. ABN 21 052 484 689 of 2/12 Peninsula Blvd. Seaford, Victoria, 3198, which is the seller of the goods.
(b) `Buyer' means the buyer named above or the client or customer of the seller in any agreement to which these terms of business are annexed.
(c) `Goods' means the products and services specified in any agreements between the buyer and the seller from time to time.
(d) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.
2. Terms of sale
The goods and all other products and services sold by the seller are sold on these terms and conditions.
3. Seller's quotations
Unless previously withdrawn, seller's quotations are open for acceptance within the period stated in them or, when no period is so stated, within 60 days only after its date. The seller reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.
The cost of any special packing and packing materials used in relation to the goods are at the buyer's expense notwithstanding that such cost may have been omitted from any quotation.
The buyer waives any claim for shortage of any goods delivered if a claim in respect for short delivery has not been lodged with seller within seven (7) days from the date of receipt of goods by the buyer.
6. Drawings, etc.
(a) Descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the goods or of the description applied to the goods.
(b) Where specifications, drawings or other particulars are supplied by the buyer, the seller's price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by seller and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in the quotation.
Any performance figures given by the seller are estimates only. The seller is under no liability for damages for failure of the goods to attain such figures.
8. Acknowledgment regarding facilities for repairs or parts
The buyer acknowledges that the seller does not promise or represent that facilities for the repair of the goods, or that parts of the goods are or will be available. The buyer must ensure that each purchaser of the goods from the buyer receives notice that the seller does not promise that facilities for the repair of the goods will be available; or parts for the goods will be available.
(a) The delivery times made known to the buyer are estimates only and the seller is not be liable for late delivery or non-delivery.
(b) The seller is not be liable for any loss, damage or delay occasioned to the buyer or its customers arising from late or non-delivery or late installation of the goods.
(c) The seller may at its option deliver the goods to the buyer in any number of instalments unless there is an agreement in writing between the parties to the effect that the buyer will not take delivery by instalments.
(d) If the seller delivers any of the goods by instalments, and any one of those instalments is defective for any reason:
(i) it is not a repudiation of the contract of sale formed by these conditions; and
(ii) the defective instalment is a severable breach that gives rise only to a claim for compensation in accordance with these terms.
10. Passing of risk
Risk in the goods passes to the buyer upon the earlier of:
(a) actual or constructive delivery of the goods to the buyer; or
(b) collection of the goods from the seller or any bailee or agent of the seller by the buyer's agent, carrier or courier.
11. Loss or damage in transit
(a) The seller is not responsible to the buyer or any person claiming through the buyer for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the seller is legally responsible for the person who caused or contributed to that loss or damage).
(b) The seller must provide the buyer with such assistance as may be necessary to press claims on carriers so long as the buyer:
(i) has notified the seller and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and
(ii) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the goods.
12.1 The seller's liability for goods sold hereunder is limited to making good any defects by repairing the defects or at the seller's option by replacement, within a period of twelve (12) calendar months after the goods have been dispatched so long as:
(a) defects have arisen solely from faulty materials or workmanship;
(b) the damage does not arise from:
(i) improper adjustment, calibration or operation by the buyer;
(ii) the use of accessories including consumables, hardware, or software which were not manufactured by or approved in writing by the seller;
(iii) any contamination or leakages caused or induced by the buyer;
(iv) any modifications of the goods which were not authorised in writing by the seller;
(v) any misuse of the goods by the buyer or anyone for whom the buyer has legal responsibility (including a minor);
(vi) any use or operation of the goods outside of the physical, electrical or environmental specifications of the goods;
(vii) inadequate or improper maintenance of the goods.
(viii) fair wear and tear of the product in an environment in respect of which the Seller has informed the Buyer in catalogues or other product literature that the period of usefulness of the product is likely to be shorter that twelve 12 months.
(c) the goods have not received maltreatment, inattention or interference;
(d) the defective parts are promptly returned free of cost to the seller.
12.2 The seller is not liable for and the buyer releases the seller from any claims in respect of faulty or defective design of any goods supplied. In any event the seller's liability under this paragraph is limited strictly to the repair or replacement of defective parts in accordance with para of these conditions.
12.3 Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the seller's negligence or in any way whatsoever.
13. Seller's liability
13.1 The seller's liability for a breach of a condition or warranty implied by Div 2 of Pt V of the Trade Practices Act 1974 (other than s 69) is limited to:
(a) in the case of goods, any one or more of the following:
(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 of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
13.2 The seller's liability under s 74H of the Trade Practices Act 1975 is expressly limited to a liability to pay to the purchaser an amount equal to:
(a) the cost of replacing the goods;
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the goods repaired, whichever is the lowest amount.
(a) Unless otherwise stated all prices quoted by vendor are net, exclusive of Goods and Services Tax (GST) and the buyer agrees to pay to the seller any GST in addition to the price.
(b) Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, the quotation, cost of materials, wages and other charges affecting the cost of production ruling on the date it is made.
(c) If the seller makes any alterations to the price of the goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the buyer's account.
The purchase price in relation to goods is payable in accordance with the schedule of payments agreed between the buyer and the seller and in default of any such agreement is payable by the buyer to the seller in full immediately upon notice by the seller that the goods are ready for delivery.
16. Rights in relation to goods (Romalpa clause)
The seller reserves the following rights in relation to the goods until all accounts owed by the buyer to the seller are fully paid:
(a) ownership of the goods;
(b) to enter the buyer's premises (or the premises of any associated company or agent where the goods are located) without liability for trespass or any resulting damage and retake possession of the goods; and
(c) to keep or resell the goods including any goods repossessed pursuant to above;
If the goods are resold, or goods manufactured using the goods are sold, by the buyer, the buyer shall hold such part of the proceeds of any such sale as represents the invoice price of the goods sold or used in the manufacture of the goods sold in a separate identifiable account as the beneficial property of the seller and shall pay such amount to the seller upon request. Notwithstanding the provisions above the seller shall be entitled to maintain an action against the buyer for the purchase price and the risk of the goods shall pass to the buyer upon delivery.
17. Buyer's property
Any property of the buyer under the seller's possession, custody or control is completely at the buyer's risk as regards loss or damage caused to the property or by it.
The seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the buyer within fourteen days of a request by the seller for such instructions. The parties agree that the seller may charge for storage from the first day after the seller requests the buyer to provide delivery instructions.
19. Returned goods
(a) The seller is not under any duty to accept goods returned by the buyer and will do so only on terms to be agreed in writing in each individual case.
(b) If the seller agrees to accept returned goods from the buyer under para (a) of this clause, the buyer must return the goods to the seller at the seller's place of business referred to at the head of these conditions.
No order may be cancelled except with consent in writing and on terms which will indemnify the seller against all losses.
The buyer indemnifies on a continuing basis on a fully indemnity basis the seller from and against any liability, loss, expense or demand for or arising from any false, misleading, deceptive or misdescriptive representation or statement made by the buyer in respect of the goods to any person. This indemnity survives termination of this agreement by either part for any reason.
22. Exclusion of representations and arrangements
These terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the goods or any part of the goods including, but without limiting the generality of the foregoing, those relating to the performance of the goods or any part of the goods or the results that ought to be expected from using the goods.
23. No waiver
The failure of any party to enforce the provisions of this agreement or to exercise any rights expressed in this agreement is not to be a waiver of such provisions or rights and does not affect the enforcement of this agreement.
24. Force Majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the seller, the seller is unable to perform in whole or in part any obligation under this agreement the seller is relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and is not liable to the buyer in respect of such inability.
25. Buyer Acknowledgement
The Buyer acknowledges that the above provisions of these Conditions of Sale are reasonable and reflected in the price.
26. Place of contract
(a) The contract for sale of the goods is made in the state of Victoria Australia.
The parties submit all disputes arising between them to the courts of such state and any court competent to hear appeals from those courts of first instance.