1. INTERPRETATION

In these terms and conditions, unless the context otherwise requires:

(a)         ‘the Seller’ means the legal entity stated on the top and/or front of this document, its related and subsidiary companies;

(b)        ‘the Buyer’ means the person (including its successors, personal representatives and permitted assigns) acquiring goods from the Seller and where there is more than one buyer the covenants on their part contained herein shall    be deemed to be joint and several covenants; and

(c)         ‘goods’ means all goods and/or services supplied by the Seller to the Buyer.

2. GENERAL

These terms and conditions are deemed to be incorporated into all contracts (expressed or implied) for the supply of goods to the Buyer and supersede all terms and conditions previously issued by the Seller.  The Seller is only prepared to sell goods upon these terms and conditions and no contract for the supply of goods shall exist between the Seller and the Buyer except upon these terms and conditions, unless their exclusion or modification is agreed to in writing by the Seller.  Any order placed by the Buyer is deemed to be an order incorporating these terms and conditions.  Where the Buyer places an order for goods which contain terms and conditions different from those herein, subsequent delivery to the Buyer shall be deemed to be a counter-offer to supply the goods on these terms and conditions. Such a counter offer shall be deemed to be accepted by the Buyer by acceptance of the goods where delivered.

3. PRICING

Prices quoted are subject to exchange rate fluctuations.  It is the policy of the Seller that all imported equipment has forward exchange cover unless otherwise agreed in writing with the Buyer. Prices listed are subject to alteration without notice to the Buyer between the date of listing and the date or dates of delivery.  All goods will be charged for at the prices ruling at the date or dates of delivery.

4. GOODS AND SERVICES TAX (GST)

All prices quoted are exclusive of GST unless otherwise stated in writing. GST will be added where applicable at the rate ruling on date of invoice.

5. PAYMENT

(a)         For imported items made to order or goods that are a special purchase, the terms of payment are:  A deposit of 30% with the order, the remaining 70% payable by irrevocable letter of credit or bank guarantee on the terms nominated in the Offer document.

(b)        For all other purchases not incorporated in 6(a) the terms of payment shall be net cash in full on or prior to delivery unless a credit facility has been extended by the Seller to the Buyer and advised in writing. The Seller reserves the right to increase or withdraw a credit facility at any time at its sole discretion.

(c)         Without prejudice to any other rights or remedies of the Seller, where any payment is not made by the due date interest at the rate of 15% from time to time shall be payable upon the amount outstanding, calculated from the due date of payment until payment is made in full.

(d)        Where the Buyer fails to effect payment as required by sub-paragraph (a) hereof the Seller may, at its discretion, and without attracting any liability to the Buyer withhold  delivery of all other goods for which orders have been placed by the Buyer and accepted by the Seller.

(e)         The Seller reserves the right to set off any amounts owing to a Buyer against amounts owed by a Buyer before settlement of monies outstanding.

(f)         In the event that the buyer has provided to the seller credit card details then the buyer authorised the seller to credit that credit card with any amounts due by the buyer to the seller.

6. QUOTATIONS & ORDER ACCEPTANCE

(a)         Every quotation may be withdrawn or changed at any time until such time the Buyer’s order is received and accepted by the Seller. Quotations provided by the Seller are to be construed as an invitation to treat and not as an offer to sell the goods the subject of the quotation by the seller.

(b)        Unless previously withdrawn by the Seller, a quotation will be deemed to have lapsed 30 days after the date of issue. Orders are subject to written acceptance by the Seller.

7. DELIVERY

(a)         Any times given for delivery are an estimate and for guidance only. The Buyer shall not be relieved of any obligation to accept or pay for the goods by reason of any delay in delivery.

(b)        The Seller shall not be liable to the Buyer or any other party for any loss or damage including direct or indirect or consequential injury loss or damage whatsoever by reason of any delay in delivery or non delivery whether the same is due to the negligence of the Seller or any other part, actions constituting fundamental breach of contract, strike or any other industrial action, or any other cause whatsoever.

(c)         It the Seller determines that it is or may be unable to complete its obligations within a reasonable time or at all, the contract may be terminated by the Seller. In the event of termination, the Buyer shall have no claim against the Seller for any damage, loss, cost or expenses whatsoever.

(d)        The goods will be delivered Free-on-Truck at the Seller’s store and costs for delivery beyond this point shall be to the Buyer’s account unless otherwise agreed in writing. Where the buyer requests that the Seller arranges such delivery, the Seller shall select the route and the means of delivery. Delivery shall be made only to ground floor or kerbside areas with appropriate access and the Buyer shall ensure that appropriate equipment is available for offloading the goods from the transport vehicle.

(e)         The Seller reserves the right to deliver by instalments and each instalment shall be deemed to be sold under a separate contract. Failure of the Seller to deliver any instalment shall not entitle the Buyer to cancel the balance or the order. If the Buyer is in default in respect of any instalments, the Seller may elect to treat the default as a breach of contract relating to each other instalment.

(f)          The Buyer shall take delivery of the goods within 7 days of notification from the Seller that the goods are ready for delivery.

(g)        Where the Buyer does not accept delivery of the goods when the goods are ready for delivery by the Seller, the Buyer shall be liable for additional charges at the Seller’s current rates for storage and/or double handling for if there is no current rate then at a rate determined by the Seller in its sole discretion.

8. TITLE

(a)         Notwithstanding the delivery of the goods or part thereof the goods remain the sole and absolute property of the Seller as full legal and equitable owner until such time as the Buyer shall have paid the Seller the full purchase price together with the full price of any other goods the subject of any other agreement with the Seller.

(b)        The Buyer acknowledges that it receives possession of and holds goods delivered by the Seller solely as bailee for the Seller until such time as the full price thereof is paid to the Seller together with the full price of any other goods then the subject of any other agreement with the Seller and that a fiduciary relationship exists between the Seller and the Buyer.

(c)         Until such time as the Buyer becomes the owner of the goods, it will;

(1)                    store them on the premises separately;

(2)                    ensure that the goods are kept in good and serviceable condition;

(3)                    secure the goods from risk, damage and theft; and

(4)                    keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Buyer.

(d)        (1)       Until such time as the Buyer becomes the owner of the goods, the Seller authorises the Buyer to sell the goods as its fiduciary agent. However, the Buyer shall not represent to any third parties that it is acting in any way for the Seller. The Seller will not be bound by any agreements with third Parties to which the Buyer is a party.

(2)                    Records shall be kept by the Buyer of any goods owned by the Seller.

(3)        The proceeds of any sale of the goods shall be paid into a separate account and held in trust for the Seller. The Buyer shall account to the Seller from this fund for the full price of the goods.

(4)        Where the Buyer is entitled to a period of credit, but if prior to the expiration of the period of credit the goods are sold and the proceeds of sale received the Buyer shall account forthwith to the Seller for the price of the goods.

(5)        Should the Buyer die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws or being a company calls a meeting for the purpose of or to go into liquidation or has a winding-up petition presented against it or has a receiver or administrator appointed, the Seller may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights under this agreement suspend or cancel this agreement or require payment in cash before or on delivery or tender of goods or documents notwithstanding terms of payment previously specified or may repossess and take over the goods and dispose of the same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale.

(e)         In the event that the Buyer uses the goods/product in some manufacturing or construction process of its own or of some third party, then the Buyer shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods/product in trust for the Seller. Such part shall be deemed to equal in dollar terms to the amount owing by the Buyer to the Seller at the time of the receipt of such proceeds.

(f)         If the Buyer does not pay for any goods on the due date then the Seller is hereby irrevocably authorised by the Buyer to enter the Buyer's premises or any premises under the control of the Buyer as agent of the Buyer and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Buyer whatsoever.

(g)        On retaking possession of the goods the Seller may elect to refund to the Buyer any part payment that may have been made and to credit the Buyer's account with the value of the goods less any charge for recovery of the goods, or to resell the goods

9. CANCELLATIONS & RETURNS

(a) Returns

(1)        No Goods listed in the Seller’s price list will be accepted for return by the seller unless a prior request (which may be accepted or refused by the Seller in its sole and absolute discretion) is made and an approval number given by the Seller. A fee of 20% of the price of the relevant goods will be charged upon the return of the goods. All costs for the   repackaging, transport and repair of returned goods shall be borne by the Buyer.

(2)        No goods will be accepted for return where the goods are not listed in the Seller’s price list.

(b) Cancellations

(1)        In the case of goods listed in the Seller’s price list, a fee of 20% of the agreed selling price of the relevant goods will be charged to the Buyer upon cancellation of any order.

(2)        In the case of goods not listed in the Seller’s price list, upon cancellation of an order, a fee equal to 100% of the cost incurred and expected to be incurred by the Seller in relation to the goods shall be charged to the Buyer.

10. TECHNICAL SPECIFICATIONS & DESCRIPTIONS

All specifications, drawings and particulars of weights and dimensions submitted by the Seller shall be regarded as approximate only.  Descriptions and illustrations contained in catalogues, price lists and other written material shall be treated as merely presenting a general idea of the goods described therein and shall not form part of any contract. The Seller may alter the specifications without notice. Any description of the goods is given by way of identification only and the use of such description shall not constitute the contract a sale by description.

11. FITNESS FOR PURPOSE

The Buyer acknowledges that neither the Seller nor any person purporting to act on its behalf made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the goods for any particular purpose or any other matter.  The Buyer acknowledges that without relying upon the skill judgement of the Seller or any person purporting to act on behalf of the Seller; it has determined that the goods being acquired shall be fit for its purposes.  Any description of the goods is for identification only and shall not constitute a contract for supply of the goods by description. The Buyer is responsible for ensuring that the goods are not used for any purpose for which they are not suitable.

12. STATUTORY RIGHTS OF THE BUYER

(a)         These terms and conditions shall not exclude, limit, restrict or modify the rights, entitlements and remedies conferred upon the Buyer or the liabilities imposed upon the Seller by any condition or warranty implied by any Commonwealth State or Territory Act rendering void or prohibiting such exclusion, limitation, restriction or modification. Except in so far as any such rights, entitlements, remedies and liabilities cannot be excluded or limited, all warranties and conditions in relation to the goods whether expressed or implied by statute, common law or trade custom or usage or otherwise are hereby expressly excluded.

(b)        To the maximum extent permitted by law, the Seller's liability to the Buyer in connection with the goods is strictly limited to the  provisions of these conditions of sale and any liability on the Seller's part or on the part of its servants or agents for damages for or in respect of any claim arising out of or in connection with the relationship established by the contract or any conduct under it, other than liability which is totally excluded by any other provision or provisions of the contract shall not in any event (and whether or not such liability results from or involves negligence) exceed $100.

13.                   IMPLIED TERMS

(a)         All conditions and warranties expressed or implied by statute, are hereby expressly excluded to the maximum extent permitted by law. The United Nations Convention on Contracts for the International Sale of Goods, a copy of which is set out in Schedule 1 of the Sale of Goods (Vienna Convention), Act 1987 shall not apply to the sale of the goods by the Seller to the Buyer.

(b)        Where permitted, the liability of the Seller for breach of a condition or warranty that cannot be excluded is limited at the option of the Seller to replacement or repair of the relevant goods or supply of equivalent goods or the cost of replacing or repairing the relevant goods or of acquiring such equivalent goods

14. RISK

(a)         Risk of loss or damage in the goods shall pass to the Buyer upon delivery of the goods to the Buyer or the agent of the Buyer or to a carrier commissioned by the Buyer or by the Seller.

(b)        The Buyer shall, at his expense, insure the goods in its name and the name of the Seller against any such loss or damage to, or loss of, the goods for their full replacement value and keep them so insured until the goods are paid for in full.

15. INDIRECT LOSS

(a)         So far as the law permits, the Seller shall be under no liability to the Buyer for any loss or damage to persons or property, or loss of property, or for death or injury caused by or arising our of or in connection with any act, matter or thing (including negligent acts or omissions) done, omitted or permitted to be done by the Seller, its servants or agents or actions constituting fundamental breach of contract.

(b)        So far as the law permits, the Seller shall not be liable to the Buyer in any way whatsoever for any indirect or consequential loss, loss of profit or any other economic loss including, without limitation, any loss by reason of delay, defective or faulty materials or, workmanship, negligence actions constituting fundamental breach of contract or any act, matter or thing done, permitted or omitted to be done by the Seller.

16. WARRANTY

(a)         Except for any express warranty given by it, the Seller excludes all conditions, warranties and terms implied by statute, general law or custom, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void (“Non-excludable Condition”).

(b)        The Seller accepts no liability for any loss or damage direct or indirect of or to any person or property arising from the installation or operation of goods including consequential loss or damage arising from any circumstances whatsoever, except under a Non-excludable Condition.

(c)         Subject to Clause 17(b) and 17(d) the Seller undertakes to repair, replace or supply (at the Sellers option) all goods and components thereof supplied by it which the Seller in its sole and absolute discretion deems to be defective in materials or workmanship under proper, normal and recommended conditions of use and maintenance. This undertaking unless otherwise confirmed in writing by the Seller covers the provision of labour and parts for 12 months from the date of commissioning of the goods by the Seller’s authorised representative or alternatively 30 days after despatch of the goods from the Seller’s store, whichever of these shall occur first.  If the goods are not installed in accordance with the manufacturer’s written instructions, the Seller may at its sole discretion render the warranty partially or wholly invalid.

(d)        Defective replacement spare parts will be repaired or re-supplied for a period of three (3) months from delivery. This undertaking applies only to state capitals and major provincial towns.  Remote areas are not covered by this commitment and special enquires should be made.

(e)         The Seller's undertaking in paragraph 17(c) does not extend to goods and components thereof manufactured either entirely or substantially of glass or similar substances, light globes, infrared or quartz tubes and electrical controls or elements, neither is it extended to include consumable items such as oils, lubricants, cleaning materials and accessory tools.

(f)         The Seller’s undertaking in paragraph 17(c) does not extend to include the repair of damage nor to adjustments to equipment as a result of external influences including, but not limited to, lightning strikes, electrical disturbances, water supply disturbances and drainage faults.

(g)        Training of operators is normally conducted during commissioning of the equipment. Re-training of existing operators and training of newly assigned operators after commissioning is not classified as warranty and may only be carried out on a chargeable basis.

(h)        The liability of the Seller under this warranty is limited to the repair or replacement of defective goods or components.  All other costs including, without limitation, cartage, carriage and installation shall be borne by the Buyer. Goods or components which fail as a result of operator error, misuse, abuse and inappropriate operation will not be repaired or replaced under warranty.

(i)         While the goods are in the custody of the Seller for investigation or repair, they shall be at the risk of the Buyer and no liability shall attach to the Seller, its servants or agents for any damage occasioned to, or loan of, the goods howsoever arising.

(j)         To obtain the benefit of this warranty, the Buyer must give notice to the Seller immediately upon it becoming aware of the   alleged defect and in any event before the expiration of the said twelve month period.

(k)        Warranty repairs are carried out during the Seller’s normal business hours (usually 07.30 hrs to 16.00 hrs) Monday to Friday excluding designated Public Holidays. Repairs may be available at times other than normal warranty hours but will not be treated as warranty and will be subject to call-out fees and hourly charges, including penalty rates where applicable.

18. COMMISSIONING

(a)         In mainland State capital cities, commissioning is included in the contract price for the supply of the goods. In other areas an additional price may apply. Commissioning by the Seller’s authorised representative includes ensuring that the goods have been correctly installed, starting the goods to ensure that they are operating as intended and instructing the designated operator(s) of the goods in the correct and safe operation of the goods.

(b)        Commissioning is possible only if the goods are fully installed. If the Seller’s representative attends site at the Buyer’s request to commission equipment that has not been fully installed, the cost of that visit at hourly rates plus travelling expenses shall be invoiced to the Buyer.

19. INSTALLATION

If the Buyer requests that the Seller shall install the goods, this shall be the subject of a separate contract from that which governs the supply of the goods. The Seller is not obligated to carry out installation but may elect to provide a quotation after a site survey and based on information communicated by the Buyer. Any subsequent change to site conditions or to the information provided by the Buyer shall render the quotation invalid and liable to amendment.

20. SUBCONTRACTING

The Seller reserves the right to sub-contract the supply, delivery, installation or commissioning of the goods where appropriate.

21. INTELLECTUAL PROPERTY

(a)         The sale to and the purchase by the Buyer of goods does not confer on the Buyer any licence or right under any copyright, patent, design or trade mark or any other intellectual property right which is the property of the Seller.

(b)        All drawings and technical specifications furnished by the Seller to the Buyer are copyright, confidential and supplied for the sole purpose of the particular contract concerned.  The Buyer shall not communicate any details of the drawing or technical specifications to any third party without the prior written consent of the Seller and shall not make any copies of or use the drawings or technical specifications for any purpose other than as expressly authorised by the Seller.

22. ASSIGNMENT

The Buyer shall not assign any of its rights or obligations hereunder without the prior written consent of the Seller.

23. LIEN

In addition to any lien to which the Seller may be entitled by statute or common law, the Seller shall, in the event of insolvency of the Buyer or winding up be thereupon entitled to a general lien on all property whatsoever owned by the Buyer and in the possession of the Seller at the time of such lien to cover the unpaid price of any goods supplied by the Seller to the Buyer.

24. WAIVER

Failure by the Seller to insist upon strict performance by the Buyer of any of these terms and conditions shall not be taken to be a waiver of any rights of the Seller in relation hereto and in any event shall not be taken to be a waiver of these terms and conditions on any subsequent occasion.

25. TERMINATION

If any payment is outstanding for more than seven (7) days after the due date (whether legally or formally demanded or not) or the Buyer fails to observe or perform any of these terms and conditions or a resolution is passed or proposed or a petition is presented or an application filing for the winding up of the Buyer or an administrator, receiver or receiver and manager is appointed in respect of the property or any part of the property of the Buyer or the Buyer (being a Seller) is de-registered or the Buyer makes or proposes to make an arrangement with its creditors or the Buyer is placed under official management or execution is levied upon the assets of the Buyer and is not satisfied within seven (7) days, the Seller may at any time thereafter terminate any contract for the sale of goods summarily by notice in writing the Buyer but without prejudice to the rights of the Seller hereunder including its rights to demand and sue for all outstanding amounts owed by the Buyer to the Seller.

26. NOTICE

A notice given by the Seller to the Buyer or the Buyer to the Seller shall be in writing, give the address of the recipient as set out on the reverse hereof or as varied by written notice, be left at or sent by registered post, telex or facsimile to that address and be in the English language.

27. SEVERANCE

If one or more provisions of these terms and conditions is or becomes void, voidable or unenforceable for any reason, all other provisions shall remain in full force and effect.

28. GOVERNING LAW

This contract shall be governed by the laws of the State of New South Wales in force for the time being and from time to time, and the parties irrevocably submit generally and unconditionally to the jurisdiction of the Courts of New South Wales in respect of claims, proceedings and matters arising out of or in respect of this contract agreement.

29. CHARGE

The Buyer hereby charges with payment of any indebtedness to the Seller all beneficial interest (freehold and leasehold) in land and personal property held now or in the future by the Buyer. The Buyer agrees that if demand is made by the Seller, the Buyer receiving such a demand will immediately execute a mortgage or other instrument of security, or consent to a caveat, as required, and against the event that the Buyer fails to do so within a reasonable time of being so requested, the Buyer hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by the Seller to be its true and lawful attorney to execute and register such instruments. Notwithstanding any other provision in this clause and in addition thereto the Seller may lodge a caveat noting the interest given by this charge on the title of any property of the Buyer whenever it so wishes.

30. TRUSTS

(a)                     This clause applies if the Buyer is a trustee and whether or not the Seller has notice of the Trust.

(b)                    Where the Buyer comprises two or more persons and any of those persons is a Trustee this clause applies to such Trustee.

(c)                     The Buyer agrees that even though the Buyer enters into this Agreement as Trustee of the Trust, the Buyer also shall be liable personally for the performance and observance of every covenant to be observed and performed by the Buyer expressed or implied in this Agreement.

(d)                    The Buyer warrants its complete, valid and unfettered power to enter into this Agreement pursuant to the provisions of the Trust including power to obtain the credit facility from the Seller and to enter into the covenants to be observed and performed by them expressed or implied in this Agreement and warrants that its entry into this Agreement is in the due administration of the Trust.

(e)                     The Buyer covenants that the rights of indemnity which it may have against the property of the Trust have not been, and in the future will not be, excluded, modified, released, lost or diminished (whether by agreement, breach of trust or otherwise).

(f)                     The Buyer shall not, without the Seller’ prior written consent:

(1)                    resign or be removed as Trustee of the Trust or appoint or allow the appointment of a new or additional Trustee of the Trust;

(2)                    amend or revoke any of the terms of the Trust;

(3)                    vest or distribute the property of the Trust or advance or distribute any capital of the Trust to a beneficiary or resettle any of the property of the Trust;

(4)                    permit a beneficiary to have the use, occupation, employment or possession of the property of the Trust;

(5)                    do or permit or omit to do an act or thing in breach of the Trust or which would permit the Trustee to be removed as Trustee of  the Trust;

(6)                    exercise or permit or allow to be exercised a power to change the vesting date of the Trust or provide for an early determination of the Trust;

(7)                    lend any money, give any guarantee or incur any debt other than in the ordinary course of business of the Trust; or

(8)                    pay any of the income of the Trust to any beneficiary of the Trust if such payment will prejudice or affect the Buyer’s ability to pay all monies due to .

31. SERVICE

The parties agree that service of any notices, demands, proceedings summons suits or actions (“process”) upon the Buyer may be effected by the Seller or its solicitors sending such process by prepaid post to the address given in the Credit Application as the address of the Buyer.  Service shall be deemed to have been effected two business days after the posting of the process.

32. VARIATION OF THESE TERMS AND CONDITIONS

The Seller may unilaterally amend these Terms and Conditions of Sale. Notice of any amendments will posted on the Seller’s website or will be notified in writing. The amendments will take affect 7 days after the amendments have been posted on the Seller’s website or 7 days after posting to the Buyer. The Buyer accepts that any agreements entered into with the Seller after the terms and conditions taking effect will be subject to the amended terms and conditions.