Terms and Conditions
FLUIDPRO PTY LTD – TERMS AND CONDITIONS OF TRADE
1. DEFINITIONS
1.1 "The Seller" means FluidPro Pty Ltd ACN 607 524 916.
1.2 "The Buyer" means the customer whose order for purchase of Goods is accepted by the Seller .
1.3 Unless the context otherwise requires:
“Force Majeure” means any cause for delay of Goods beyond our reasonable control, including but not limited to strikes, machinery breakdowns and storms;
“Goods” means the equipment/goods or items specified on the quotation and/or invoice; “Service” means all services defined in the quotation that the Seller are required to effect;
“Site” means the physical location where the Goods will be installed or the Services performed.
“Terms” means these terms and conditions;
“Warranty Against Defects” means any warranty the Supplier provides as to the performance of the Goods and Service in addition to any warranty or consumer guarantee imposed or implied which may not be excluded by law.
1.2 "The Buyer" means the customer whose order for purchase of Goods is accepted by the Seller .
1.3 Unless the context otherwise requires:
“Force Majeure” means any cause for delay of Goods beyond our reasonable control, including but not limited to strikes, machinery breakdowns and storms;
“Goods” means the equipment/goods or items specified on the quotation and/or invoice; “Service” means all services defined in the quotation that the Seller are required to effect;
“Site” means the physical location where the Goods will be installed or the Services performed.
“Terms” means these terms and conditions;
“Warranty Against Defects” means any warranty the Supplier provides as to the performance of the Goods and Service in addition to any warranty or consumer guarantee imposed or implied which may not be excluded by law.
2. GENERAL CONDITIONS
2.1 These Terms apply to every sales contract and sale of Goods between the Seller and the Buyer.
2.2 Any terms and conditions of the Buyer's order deviating from or inconsistent with these Terms are expressly rejected by the Seller. This rejection also extends to any statement by the Buyer that the Buyer's terms and conditions prevail and to any stipulation by the Buyer as to the manner of declaring such rejection.
2.3 A contract shall only be, or be deemed to have been, entered into between the Seller and the Buyer for the supply of Goods when, upon an order having been placed upon the Seller for Goods, that order has been accepted by the Seller.
2.4 Acceptance of an order may be made and communicated by the Seller in writing or by an act of acceptance. The provisions of this Clause apply to every quotation or offer made by the Seller for the supply of Goods.
2.5 Variations requested by the Buyer to details, sizes, quantities, delivery instructions, specifications for materials or any other item or matter may be added by written mutual consent, which may incur additional cost to that defined in the quotation or tax invoice.
2.6 Commercially available materials incorporated in the Goods can vary in surface finish, texture and material composition. Whenever samples are presented for approval, these are representative of what is commercially available. If the Seller believes that it is necessary to change the materials used in manufacture of the Goods to take advantage of any technical developments, improvements or modifications or availability of supply, all such changes will be defined and submitted in writing for acceptance by the Buyer.
2.7 Where the Seller defines measurements or specifications, these are to be regarded as approximate until confirmed in writing by the Buyer.
2.8 In certain instances, the Seller will (in its absolute discretion) allow for items supplied by the Buyer to be incorporated into the Goods. Where these items are found to be defective, the Seller may request resupply by the Buyer or provide acceptable replacements at additional cost to the Buyer.
2.9 Clerical errors in computations, typing or otherwise, of acceptance, offer, invoice, delivery docket, credit note or specification will be the subject of correction.
2.10 The Seller will rely upon the information and specifications given by the Buyer from time-to-time. The Buyer will be liable for all costs, and indemnify the Seller for expenses incurred, once the Seller has accepted an order from the Buyer and has provided services, arranged or commenced production of Goods or arranged the supply of Goods on the basis of information or specifications provided by the Buyer in the order or in connection with the order. In the event the Buyer changes the specification of the order at any time after acceptance of the order by the Seller then the Buyer will be liable for any additional costs associated with the changes and must meet the cost of any Goods or services already supplied by the Seller in respect of the original order whether or not it complies with the later specification.
2.2 Any terms and conditions of the Buyer's order deviating from or inconsistent with these Terms are expressly rejected by the Seller. This rejection also extends to any statement by the Buyer that the Buyer's terms and conditions prevail and to any stipulation by the Buyer as to the manner of declaring such rejection.
2.3 A contract shall only be, or be deemed to have been, entered into between the Seller and the Buyer for the supply of Goods when, upon an order having been placed upon the Seller for Goods, that order has been accepted by the Seller.
2.4 Acceptance of an order may be made and communicated by the Seller in writing or by an act of acceptance. The provisions of this Clause apply to every quotation or offer made by the Seller for the supply of Goods.
2.5 Variations requested by the Buyer to details, sizes, quantities, delivery instructions, specifications for materials or any other item or matter may be added by written mutual consent, which may incur additional cost to that defined in the quotation or tax invoice.
2.6 Commercially available materials incorporated in the Goods can vary in surface finish, texture and material composition. Whenever samples are presented for approval, these are representative of what is commercially available. If the Seller believes that it is necessary to change the materials used in manufacture of the Goods to take advantage of any technical developments, improvements or modifications or availability of supply, all such changes will be defined and submitted in writing for acceptance by the Buyer.
2.7 Where the Seller defines measurements or specifications, these are to be regarded as approximate until confirmed in writing by the Buyer.
2.8 In certain instances, the Seller will (in its absolute discretion) allow for items supplied by the Buyer to be incorporated into the Goods. Where these items are found to be defective, the Seller may request resupply by the Buyer or provide acceptable replacements at additional cost to the Buyer.
2.9 Clerical errors in computations, typing or otherwise, of acceptance, offer, invoice, delivery docket, credit note or specification will be the subject of correction.
2.10 The Seller will rely upon the information and specifications given by the Buyer from time-to-time. The Buyer will be liable for all costs, and indemnify the Seller for expenses incurred, once the Seller has accepted an order from the Buyer and has provided services, arranged or commenced production of Goods or arranged the supply of Goods on the basis of information or specifications provided by the Buyer in the order or in connection with the order. In the event the Buyer changes the specification of the order at any time after acceptance of the order by the Seller then the Buyer will be liable for any additional costs associated with the changes and must meet the cost of any Goods or services already supplied by the Seller in respect of the original order whether or not it complies with the later specification.
3. PRICES
3.1 Until accepted by the Buyer, quotations are to be treated as estimates only and are subject to withdrawal, correction or alteration by the Seller at any time before the acceptance of the order by the seller.
3.2 Unless specifically defined, no allowance has been made in the quotation for the following:(a) Installation or delivery of Goods;(b) Any work outside normal working hours; or(c) Any approvals from third parties such as Councils, Electricity Supply Authorities, or other Statutory Bodies.
3.3 If the Seller is required at the Buyer’s request to arrange delivery and freight of the Goods, an additional charge will be applied for the cost of the delivery, freight and insurance for the Goods when in transit.
3.4 If the Seller uses imported materials as a component in the manufacture of the Goods, there may be price variation due to currency fluctuations.
3.5 Prices quotations are firm for 21 days (subject to currency fluctuations, if applicable), thereafter; quotations are subject to revision.
3.6 The minimum invoice price is $25.00.
3.7 The price excludes all taxes, duties, charges, fees and GST.
3.2 Unless specifically defined, no allowance has been made in the quotation for the following:(a) Installation or delivery of Goods;(b) Any work outside normal working hours; or(c) Any approvals from third parties such as Councils, Electricity Supply Authorities, or other Statutory Bodies.
3.3 If the Seller is required at the Buyer’s request to arrange delivery and freight of the Goods, an additional charge will be applied for the cost of the delivery, freight and insurance for the Goods when in transit.
3.4 If the Seller uses imported materials as a component in the manufacture of the Goods, there may be price variation due to currency fluctuations.
3.5 Prices quotations are firm for 21 days (subject to currency fluctuations, if applicable), thereafter; quotations are subject to revision.
3.6 The minimum invoice price is $25.00.
3.7 The price excludes all taxes, duties, charges, fees and GST.
4. TERMS OF PAYMENT
4.1 By cash, cheque or electronic funds transfer on or prior to delivery. Where payment is made by cheque, payment shall not be deemed to have been received until cleared funds are received in the Seller's bank account. If a cheque is dishonoured, the Seller reserves the right to recover all accounting fees, Bank charges and other fees incurred in respect to such dishonour from the Buyer.
4.2 Notwithstanding clause 4.1, the Seller reserves the right to request progress payments in the following manner:(a) 30% progress payment on placement of the Buyer’s order;(b) Additional progress payments as defined in the quotation.
4.3 The Seller may grant credit facilities to the Buyer where payment for all Goods sold will be paid by the Buyer within 30 days from the last day of the month in which delivery was made.
4.4 Where the Buyer has failed to make payment in accordance with what has been agreed, the Seller will stop delivery of Goods and supply of Services to the Buyer and payment shall become immediately due for all Goods and Services subject of quotation, the Buyer's order or any agreement to supply, whether supply has been made or not.
4.5 If the Buyer does not pay for the Goods and Services by the due date, the Buyer will be liable to pay interest at the rate of 20% per annum (calculated on a daily basis) on all overdue amounts, which the Buyer accepts as a genuine assessment of risk, costs and charges.
4.2 Notwithstanding clause 4.1, the Seller reserves the right to request progress payments in the following manner:(a) 30% progress payment on placement of the Buyer’s order;(b) Additional progress payments as defined in the quotation.
4.3 The Seller may grant credit facilities to the Buyer where payment for all Goods sold will be paid by the Buyer within 30 days from the last day of the month in which delivery was made.
4.4 Where the Buyer has failed to make payment in accordance with what has been agreed, the Seller will stop delivery of Goods and supply of Services to the Buyer and payment shall become immediately due for all Goods and Services subject of quotation, the Buyer's order or any agreement to supply, whether supply has been made or not.
4.5 If the Buyer does not pay for the Goods and Services by the due date, the Buyer will be liable to pay interest at the rate of 20% per annum (calculated on a daily basis) on all overdue amounts, which the Buyer accepts as a genuine assessment of risk, costs and charges.
5. DELIVERY AND PART DELIVERY
5.1 If the Seller is requested by the Buyer to deliver the Goods, every endeavour will be made to complete delivery of the Goods within the period stated.
5.2 Delivery dates quoted by the Seller are indicative only and the Seller will not be liable for delays occasioned for whatsoever reason.
5.3 The Seller may make part delivery of any order unless agreed to the contrary in writing. Failure to make a delivery of a total order shall not invalidate these Terms in relation to the balance of the other deliveries of the Goods.
5.2 Delivery dates quoted by the Seller are indicative only and the Seller will not be liable for delays occasioned for whatsoever reason.
5.3 The Seller may make part delivery of any order unless agreed to the contrary in writing. Failure to make a delivery of a total order shall not invalidate these Terms in relation to the balance of the other deliveries of the Goods.
6. CONFIRMATION ORDERS
Confirmation orders must be marked as such by the Buyer, absent such marking, the Seller will consider the Buyer's order as original.
7. PASSING OF TITLE AND RISK
7.1 Property in and title to the Goods will not pass to the Buyer until all amounts owing to the Seller, pursuant to any contract between the Seller and the Buyer, have been paid in full.
7.2 The Buyer agrees that the Seller retains ownership of any goods supplied by the Buyer to be incorporated into the Goods until the Buyer has made payment in full.
7.3 Unless and until property in and title to the Goods has passed to the Buyer or the Goods have been sold by the Buyer in the ordinary course of the Buyer’s business:(i) The Buyer holds the Goods as bailee for the Seller;(ii) The Goods are always at the risk of the Buyer.
7.4 If the Buyer receives the Goods prior to making payment in full, the Buyer agrees to:(a) Store the Goods separately from the property of any other person;(b) At all times store the Goods in some manner that will enable it to be identified as the Seller's property;(c) Not mortgage charge, transfer, convey or otherwise deal with the Goods without the Seller's consent;(d) At all times allow the Seller to have access to the Goods, inspect or recover possession of the Goods.
7.5 Allow the Seller, having repossessed the Goods, to recover the debt incurred by the Buyer by selling or disposing as the Seller sees fit.
7.6 The Buyer is deemed to be in default under its contract with the Seller immediately upon the happening of any of the following events:(i) if any payment to the Seller is not made promptly before the due date for payment;(ii) if the Buyer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Buyer payable to the Seller is dishonoured.
7.7 In the event of a default by the Buyer, then without prejudice to any other rights that the Seller may have at law or under this contract:(i) the Seller or its agents may without notice to the Buyer enter the Buyer’s premises or other premises where the Buyer has located the Goods and the Buyer agrees to indemnify and keep indemnified Seller from any claim whatsoever by any third party person or company in possession arising out of any action required by Seller to recover such Goods;(ii) the Seller may recover and resell the Goods.
7.8 If the Goods cannot be distinguished from similar Goods which the Buyer has or claims to have paid for in full, the Seller may in its absolute discretion seize all Goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of the Seller and the Buyer may be ascertained. The Seller must promptly return to the Buyer any Goods the property of the Buyer and the Seller is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Buyer’s business howsoever arising from the seizure of the Goods.
7.9 In the event that the Buyer uses the Goods in some manufacturing or construction process of its own or some third party, then the Buyer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for the Seller. Such part will be an amount equal in dollar terms to the amount owing by the Buyer to the Seller at the time of the receipt of such proceeds. The Buyer will pay the Seller such funds held in trust upon the demand of the Seller.
7.10 Risk in the Goods will pass to the Buyer upon delivery to the Buyer or, where the Buyer arranges collection of the Goods, upon their being made available for collection by the Seller. The Buyer shall
7.2 The Buyer agrees that the Seller retains ownership of any goods supplied by the Buyer to be incorporated into the Goods until the Buyer has made payment in full.
7.3 Unless and until property in and title to the Goods has passed to the Buyer or the Goods have been sold by the Buyer in the ordinary course of the Buyer’s business:(i) The Buyer holds the Goods as bailee for the Seller;(ii) The Goods are always at the risk of the Buyer.
7.4 If the Buyer receives the Goods prior to making payment in full, the Buyer agrees to:(a) Store the Goods separately from the property of any other person;(b) At all times store the Goods in some manner that will enable it to be identified as the Seller's property;(c) Not mortgage charge, transfer, convey or otherwise deal with the Goods without the Seller's consent;(d) At all times allow the Seller to have access to the Goods, inspect or recover possession of the Goods.
7.5 Allow the Seller, having repossessed the Goods, to recover the debt incurred by the Buyer by selling or disposing as the Seller sees fit.
7.6 The Buyer is deemed to be in default under its contract with the Seller immediately upon the happening of any of the following events:(i) if any payment to the Seller is not made promptly before the due date for payment;(ii) if the Buyer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Buyer payable to the Seller is dishonoured.
7.7 In the event of a default by the Buyer, then without prejudice to any other rights that the Seller may have at law or under this contract:(i) the Seller or its agents may without notice to the Buyer enter the Buyer’s premises or other premises where the Buyer has located the Goods and the Buyer agrees to indemnify and keep indemnified Seller from any claim whatsoever by any third party person or company in possession arising out of any action required by Seller to recover such Goods;(ii) the Seller may recover and resell the Goods.
7.8 If the Goods cannot be distinguished from similar Goods which the Buyer has or claims to have paid for in full, the Seller may in its absolute discretion seize all Goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of the Seller and the Buyer may be ascertained. The Seller must promptly return to the Buyer any Goods the property of the Buyer and the Seller is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Buyer’s business howsoever arising from the seizure of the Goods.
7.9 In the event that the Buyer uses the Goods in some manufacturing or construction process of its own or some third party, then the Buyer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for the Seller. Such part will be an amount equal in dollar terms to the amount owing by the Buyer to the Seller at the time of the receipt of such proceeds. The Buyer will pay the Seller such funds held in trust upon the demand of the Seller.
7.10 Risk in the Goods will pass to the Buyer upon delivery to the Buyer or, where the Buyer arranges collection of the Goods, upon their being made available for collection by the Seller. The Buyer shall
8. FORCE MAJEURE
8.1 If the Seller is precluded from completing the supply of Goods by reason of a Force Majeure, the Seller will give notice to the Buyer of such cause and the Seller will be relieved from the execution and performance of obligations for the duration of the Force Majeure.
8.2 The Seller will not be liable to the Buyer for any defect, loss, damage or other delay whatsoever caused by Force Majeure.
8.2 The Seller will not be liable to the Buyer for any defect, loss, damage or other delay whatsoever caused by Force Majeure.
9. CANCELLATION OF SUPPLY OF GOODS
9.1 Orders accepted by the Seller cannot be countermanded or delivery deferred or, other than arising out of a breach of any warranty or consumer guarantee claim, or Goods returned, except with the written consent of the Seller and upon terms that reimburse and indemnify the Seller against all loss including cartage, bank charges and other incidental expenses on any part of the order that is cancelled. Where the Seller agrees to accept Goods for return a re-stocking charge of 20% of the price of Goods returned will be made by the Buyer.
9.2 The Seller may refuse to supply the Goods that the Buyer has ordered in accordance with the quotation and/or order acknowledgement if:(a) The Buyer is in breach of any of these Terms and fail to rectify the breach within 7 days of receiving a notice from the Seller requesting the Buyer to rectify the breach; or(b) The Buyer fails to take delivery of the Goods within 7 days of receiving notice that the Goods are ready for delivery.
9.2 The Seller may refuse to supply the Goods that the Buyer has ordered in accordance with the quotation and/or order acknowledgement if:(a) The Buyer is in breach of any of these Terms and fail to rectify the breach within 7 days of receiving a notice from the Seller requesting the Buyer to rectify the breach; or(b) The Buyer fails to take delivery of the Goods within 7 days of receiving notice that the Goods are ready for delivery.
10. THE COMPETITION AND CONSUMER ACT 2010 (Cth) AND THE FAIR TRADING ACT 1987 (NSW)
10.1 Nothing in these Terms will affect any other rights and remedies the Buyer may have under the Competition and Consumer Act 2010 (Cth) and the Fair Trading Act 1987 (NSW) and any subsequent amendments.
10.2 To the extent to which the Seller is entitled to limit liability for failure to comply with a guarantee for the supply of Goods and Services under the above legislation, liability is limited (at the Seller's option) to one of more of the following:(a) The replacement of the Goods or the supply of equivalent Goods;(b) The repair of the Goods;(c) The payment of the cost of replacing the Goods or of acquiring equivalent Goods;(d) The payment of the cost of having the Goods repaired;(e) The supplying of the Service again; or(f) The payment of the cost of having the Service supplied again.
10.2 To the extent to which the Seller is entitled to limit liability for failure to comply with a guarantee for the supply of Goods and Services under the above legislation, liability is limited (at the Seller's option) to one of more of the following:(a) The replacement of the Goods or the supply of equivalent Goods;(b) The repair of the Goods;(c) The payment of the cost of replacing the Goods or of acquiring equivalent Goods;(d) The payment of the cost of having the Goods repaired;(e) The supplying of the Service again; or(f) The payment of the cost of having the Service supplied again.
11. WARRANTY
11.1 Goods sold shall only have the benefit of a manufacturer’s warranty if the Buyer has complied with the manufacturer's instructions in relation to maintenance and operation of the Goods.
11.2 The Seller’s liability in respect of a breach of a consumer guarantee for any Goods or Services not of a kind ordinarily acquired for personal, domestic or household use is limited to, to the extent permissible by law and at the Seller’s option in relation to the Goods:(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; or(iv) The payment of the cost of having the Goods repaired.
11.3 The Seller excludes to the full extent permitted by law to which it is entitled to do so by law, any or all other warranties whether implied or otherwise, not set out in these Terms and the Seller is not liable in contract, tort (including without limitation, negligence or breach of statutory duty) or otherwise to compensate the Buyer for:(i) Any increased costs or expenses;(ii) Any loss of profit, revenue, business, contracts or anticipated savings;(iii) Any loss or expense resulting from a claim by a third party;(iv) Any special, indirect or consequential loss or damage of any nature whatsoever caused by the Seller’s failure to complete or delay in completing any of its obligations set out in these Terms;(v) Defects or damages caused in whole or in part by misuse, abuse, neglect, electrical or other overload, non-suitable lubricant, improper installation repair or alteration (other than by the Seller) or accident;(vi) Any transport installation removal labour or other costs;(vii) Defects in Goods not manufactured by it but the Seller will endeavour to pass on to the Buyer the benefit of any claim made by the Seller and accepted by the manufacturer of such Goods under a warranty given by the manufacturer of such Goods provided that nothing contained in this subparagraph shall limit the Buyer’s rights under law;(viii) Technical advice or assistance given or rendered to the Buyer or not in connection with the manufacture construction or supply of Goods for or to the Buyer provided always that the Seller has rendered such services with due care and skill and that any material supplied in connection with those services are reasonably fit for the purpose for which they are supplied.
11.4 The exemption, limitations, terms and conditions in these Terms apply whether or not the loss or damage is caused by negligence or actions constituting fundamental breach of contract.
11.2 The Seller’s liability in respect of a breach of a consumer guarantee for any Goods or Services not of a kind ordinarily acquired for personal, domestic or household use is limited to, to the extent permissible by law and at the Seller’s option in relation to the Goods:(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; or(iv) The payment of the cost of having the Goods repaired.
11.3 The Seller excludes to the full extent permitted by law to which it is entitled to do so by law, any or all other warranties whether implied or otherwise, not set out in these Terms and the Seller is not liable in contract, tort (including without limitation, negligence or breach of statutory duty) or otherwise to compensate the Buyer for:(i) Any increased costs or expenses;(ii) Any loss of profit, revenue, business, contracts or anticipated savings;(iii) Any loss or expense resulting from a claim by a third party;(iv) Any special, indirect or consequential loss or damage of any nature whatsoever caused by the Seller’s failure to complete or delay in completing any of its obligations set out in these Terms;(v) Defects or damages caused in whole or in part by misuse, abuse, neglect, electrical or other overload, non-suitable lubricant, improper installation repair or alteration (other than by the Seller) or accident;(vi) Any transport installation removal labour or other costs;(vii) Defects in Goods not manufactured by it but the Seller will endeavour to pass on to the Buyer the benefit of any claim made by the Seller and accepted by the manufacturer of such Goods under a warranty given by the manufacturer of such Goods provided that nothing contained in this subparagraph shall limit the Buyer’s rights under law;(viii) Technical advice or assistance given or rendered to the Buyer or not in connection with the manufacture construction or supply of Goods for or to the Buyer provided always that the Seller has rendered such services with due care and skill and that any material supplied in connection with those services are reasonably fit for the purpose for which they are supplied.
11.4 The exemption, limitations, terms and conditions in these Terms apply whether or not the loss or damage is caused by negligence or actions constituting fundamental breach of contract.
12. ACCEPTANCE AND CLAIMS
12.1 Orders accepted by the Seller cannot be countermanded or delivery deferred or Goods returned except with our written consent.
12.2 The Seller is not responsible for any shortages notified after 7 business days.
12.3 The Seller will not accept return of Goods unless such return is authorised by the Seller in writing.
12.4 Where Goods are accepted for return (for reasons other than our failure to comply with a consumer guarantee or under our Warranty Against Defects), a restocking fee of 20% of the invoiced price of the Goods returned will be payable by the Buyer, plus any freight charges incurred.
12.5 Goods specially purchased, manufactured, machined or cut to size to the Buyer's specifications are not returnable, except in circumstances where the return is necessary to comply with a consumer guarantee or our Warranty Against Defects.
12.2 The Seller is not responsible for any shortages notified after 7 business days.
12.3 The Seller will not accept return of Goods unless such return is authorised by the Seller in writing.
12.4 Where Goods are accepted for return (for reasons other than our failure to comply with a consumer guarantee or under our Warranty Against Defects), a restocking fee of 20% of the invoiced price of the Goods returned will be payable by the Buyer, plus any freight charges incurred.
12.5 Goods specially purchased, manufactured, machined or cut to size to the Buyer's specifications are not returnable, except in circumstances where the return is necessary to comply with a consumer guarantee or our Warranty Against Defects.
13. INSURANCE
13.1 Until payment has been made for the Goods delivered to the Buyer, the Buyer will insure the Goods against all usual risks. Any insurance claims in respect of damage or destruction to the Goods is hereby assigned by the Buyer to the Seller. The Buyer will indemnify the Seller against all loss or damage to or caused by the Goods however arising.
13.2 Where a third party is used to transport the Goods, the Buyer is responsible to insure the Goods unless otherwise agreed to by the Seller.
13.3 Should the Goods need to be reordered due to being lost or damaged from any cause, the Buyer is responsible for any increase in costs.
13.4 Contract works insurance covering the production of the Goods is to be arranged by the Buyer unless agreed to by the Seller.
13.2 Where a third party is used to transport the Goods, the Buyer is responsible to insure the Goods unless otherwise agreed to by the Seller.
13.3 Should the Goods need to be reordered due to being lost or damaged from any cause, the Buyer is responsible for any increase in costs.
13.4 Contract works insurance covering the production of the Goods is to be arranged by the Buyer unless agreed to by the Seller.
14. COMMISSIONING OF EQUIPMENT
14.1 Unless otherwise expressly specified in the quotation, the Seller has no obligation to install, commission, start up, test or maintain the Goods.
14.2 If the Seller agrees to install, commission, start up, test or maintain the equipment, the Buyer must have the Site clear and available and, if required, the Buyer must provide free of charge water, steam, gas, fuel and all other services essential to the installation, commissioning and continued functioning of the Goods prior to the Seller's arrival at the Site.
14.2 If the Seller agrees to install, commission, start up, test or maintain the equipment, the Buyer must have the Site clear and available and, if required, the Buyer must provide free of charge water, steam, gas, fuel and all other services essential to the installation, commissioning and continued functioning of the Goods prior to the Seller's arrival at the Site.
15. PERSONAL PROPERTY SECURITIES ACT 2009 (Cth)
15.1 Defined terms in this clause have the same meaning as given to them in the Personal Property Securities Act (2009) (PPSA).
15.2 The Seller and the Buyer acknowledge that these Terms constitute a Security Agreement and give rise to a Purchase Money Security Interest (“PMSI”) in favour of the Seller over the Goods supplied or to be supplied to the Buyer as Grantor pursuant to the Terms.
15.3 The Goods supplied or to be supplied under these Terms fall within the PPSA classification of “other goods” acquired by the Buyer pursuant to these Terms.
15.4 The Seller and the Buyer acknowledge that the Seller, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Buyer as Grantor under the Terms on the PPSA Register as collateral.
15.2 The Seller and the Buyer acknowledge that these Terms constitute a Security Agreement and give rise to a Purchase Money Security Interest (“PMSI”) in favour of the Seller over the Goods supplied or to be supplied to the Buyer as Grantor pursuant to the Terms.
15.3 The Goods supplied or to be supplied under these Terms fall within the PPSA classification of “other goods” acquired by the Buyer pursuant to these Terms.
15.4 The Seller and the Buyer acknowledge that the Seller, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Buyer as Grantor under the Terms on the PPSA Register as collateral.
16. NO IMPLIED SERVICE
16.1 The Buyer acknowledges that except as provided by law these Terms do not entitle the Buyer to demand to receive from the Seller any site inspection or service of the Goods supplied, delivered and/or installed, such work to be the subject of a separate agreement, if applicable.
16.2 Absent such separate agreement, and to the extent permissible at law, the Buyer acknowledges that in the event of the Goods supplied requiring to be serviced or inspected due to breakdown or otherwise, then the Buyer shall rely solely on any benefit in respect of same provided by the manufacturer.
16.2 Absent such separate agreement, and to the extent permissible at law, the Buyer acknowledges that in the event of the Goods supplied requiring to be serviced or inspected due to breakdown or otherwise, then the Buyer shall rely solely on any benefit in respect of same provided by the manufacturer.
17. AGREED USE
17.1 The Seller will produce the Goods (and provide the Services) in accordance with the specifications made known to the Seller at the time of acceptance of the order or as may be later agreed in writing between the parties. The Seller will not be liable for any costs, damages or for repairs where the Goods produced by the Seller for the Buyer in accordance with the agreed order are used by the Buyer in a manner, or for a purpose, other than that made known to the Seller explicitly in the written specifications.
17.2 The Buyer acknowledges that the matters set out in the schedule hereto are a true description of the purpose for which the Goods purchased are to be applied in respect of work required to be performed by such Goods and that the Buyer may forfeit any rights, if any, it may have against the Seller arising out of the supply of the subject Goods if they are applied to any other use.
17.3 The Buyer forfeits any right of claim against the Seller if any alteration to the Goods is carried out without the Seller's written consent. The Buyer further acknowledges sole responsibility for any damage or injury to property or persons caused by using the sold Goods to pump or transfer hazardous or toxic fluids or substances.
17.2 The Buyer acknowledges that the matters set out in the schedule hereto are a true description of the purpose for which the Goods purchased are to be applied in respect of work required to be performed by such Goods and that the Buyer may forfeit any rights, if any, it may have against the Seller arising out of the supply of the subject Goods if they are applied to any other use.
17.3 The Buyer forfeits any right of claim against the Seller if any alteration to the Goods is carried out without the Seller's written consent. The Buyer further acknowledges sole responsibility for any damage or injury to property or persons caused by using the sold Goods to pump or transfer hazardous or toxic fluids or substances.
18. REPAIRS
Goods returned by the Buyer to the Seller for repair must be returned at the Buyer’s cost and remain at the Buyer's risk
19. VARIATION BY BUYER
Subject to clause 2.10, should there be any variation in details, sizes and quantities, delivery instructions or any other item or matter on which the quotation or invoice is based the Seller reserves the right to revise and amend the contract price accordingly.
20. COUNCIL APPROVAL
The Sellers quotation makes no allowance for building or development application or fees to Council or relevant approvals for installation and use of Goods as may be required by Council or Government laws, regulations or codes. Responsibility to obtain such approvals rests solely with the Buyer.
21. MODIFICATIONS
All modifications and amendments to these Terms must be agreed by the Seller in writing otherwise will not be binding upon the Seller.
22. UNCOLLECTED GOODS
22.1 If the Buyer fails to take delivery of the Goods within 30 days of the date the Seller advises the Buyer that the Goods are available for delivery, the Buyer irrevocably authorises the Seller to store the Goods in a secure storage facility at the cost of the Buyer.
22.2 The Seller may dispose of the Goods in accordance with the Uncollected Goods Act 1995 or other applicable laws.
23. INVALID
If any of the provisions of this Contract are unlawful or invalid by reason of any applicable statute or rule of law, then such provision shall be severed from the rest of these Terms which shall remain valid and binding on the parties.
24. GOVERNING LAW
24.1 The law of New South Wales governs these Terms.
24.2 The parties submit to the exclusive jurisdiction of the New South Wales tribunals, courts and appellant courts.
24.2 The parties submit to the exclusive jurisdiction of the New South Wales tribunals, courts and appellant courts.
Last updated 12/03/2024