APPLICABILITY OF CONDITIONS
- These conditions of Sale of Spray Nozzle Engineering Pty Ltd ACN 056 441 724 or Reel-Tech Pty Ltd ACN 056 441 555 or DetectaClean Pty Ltd ACN 604 328 154
Spray Nozzle Engineering Ltd RGN 684 946 48 /Reel-Tech Ltd RGN 687 951 17 / Detectaclean Ltd RGN 116229226 (severally hereinafter called ‘the Company’) apply as follows.
- Unless otherwise agreed in writing by the Company the following conditions shall govern this transaction and shall be incorporated into all future transactions between the Company and the customer (hereinafter called ‘the Buyer) for all the sales, supplies and deliveries of materials and other products (hereinafter called ’Goods’), whether or not these conditions are made expressly applicable to any particular future transaction.
- Engineering services, installation and Commissioning are not undertaken unless agreed by the company in writing and signed by Director of the Company.
THE STATUTORY RIGHTS
Buyers statutory rights apply to the extent they cannot be lawfully excluded. These conditions shall not limit, restrict, modify or exclude the rights and remedies upon the Buyers or the liabilities imposed upon the Company by any condition or warranty implied by Commonwealth State or Territory legislation prohibiting or rendering void any such limitation, restriction, modification or exclusion.
Subject to Condition 2.
- Resale Equipment Warranty – All Products as purchased by the Company for resale to the Buyer, such Products either represented in their own right or as included with any other equipment or assembly as manufactured or assembled by the Company, are subject to the terms of Warranty as issued by that manufacturer, excluding the Company.
- Manufactured Equipment Warranty – The Company will replace, repair or refund the purchase price of the Product as manufactured by the Company (excluding such items as covered by separate warranties above in 3 a.) at their option, free of charges, except transportation to and from the Buyer, if defective in their manufacture or design. Definition of defective products shall be governed by the Company’s judgment regarding acceptable application duty as employed by the Buyer. Such acceptable duty shall not be the responsibility of the Company at any time but shall remain the Buyers responsibility. Product duty must be subject to Company scrutiny at time of Claim. The acceptance of a Warranty return by the company shall in no way acknowledge existence of a defect. Claims must be lodged in writing to the Company within 90 days of installation or one year from dispatch date, whichever occurs first. Goods must not under any circumstances be returned prior to this Claim being acknowledged in writing by the Company and approval for such returns being granted by the Company. Such approval for return shall satisfy inspection purposes only and does not confirm acceptance of Claim.
Claim will be further subject to analysis prior to acceptance or rejection. The Product should be returned to the place of purchase. This warranty is exclusive remedy and the Company/Distributor shall not be liable for consequential damages, injury or commercial loss. The Company/Distributor makes no warranty of fitness for a particular purpose and makes no other warranty, express or implied arising from the course of dealing or usage in trade. The right conferred on the Buyer by this Condition shall be the sole liability on the Company in respect to any defects affecting any Product of the Company.
- Where the Company supplies goods manufactured by a third party, then the Company will to the extent permitted, assign the benefit of the manufacturer’s warranty to the Buyer.
- Any advice, recommendation, information or service provided by the Company or its employees or agents in relation too goods it manufactures or supplies, their use and application or any other matter whatsoever is based upon research testing and enquiries believed by the Company to be appropriate and reliable. Subject to condition 2, any such advice recommendation information or service so provided is offered as helpful suggestions only and without any liability or responsibility on the part of the Company or is employees or agents and is accepted at the risk of the person acting upon it. The company gives no warranty of freedom from patent infringement in relation to the use of any advice, recommendation, information or service it may give. In particular, note that the Chemical and Temperature compatibility along with Dimensional, Pressure and Performance suitability of the goods not excluding all other aspects of their specification are the exclusive responsibility of the purchaser. Chemical compatibility charts and product performance data including dimensional information available on request prior to purchase. Specifications and any other Technical information are subject to change without notice.
- The Buyer acknowledges having received the technical product specifications for the goods purchased from the Company.
- It is solely the Buyer’s responsibility to determine the suitability of the goods for any particular application or use based on the technical specification provided by the Company and its own enquiries and due diligence.
- The giving of an order by the Buyer to the Company for any Goods shall constitute an unqualified acknowledgement by the Buyer that, if the Company accepts the Order, the Sale, supply or delivery of such Goods by the Company will be governed solely by these Conditions of Sale. All orders from the Buyer accepted by the Company for the sale, supply or delivery of any Goods are so accepted solely subject to these Conditions of Sale. No addition to or variation of these Conditions of Sale and no oral stipulation or representation shall be binding on the Company unless expressly agreed to in writing and signed by a Director or the Secretary of the Company on its behalf.
- No order may be cancelled by the Buyer once the Company has accepted it. If the buyer wrongfully cancels any order, the Company shall (without prejudice to any other rights of the Company) be entitled to be fully indemnified by the Buyer against all and any loss arising through or in connection with such cancellation, and to withhold delivery of any other Goods ordered by the Buyer until the Buyer shall have paid the amount of such loss.
- No Returns will be considered for credit unless claims for return are lodged in writing to the Company within 90 days of sale or shipment either of which occurs first. Goods must not under any circumstances be returned prior to this notice being acknowledged in writing by the Company and approval for such returns being granted by the Company. Such approval for return shall only apply to regularly stocked inventory lines only. The Product should be returned to the place of purchase. Goods specially built to customer specifications and requirements, including Inventory lines not regularly stocked, are not subject to cancellation nor are returnable for credit claim under any circumstances. All Products accepted for credit will be subject to a minimum 25% or greater restocking charge. No product will be accepted for credit after one year from date of purchase.
- Except as otherwise expressly stated, all prices quoted by the Company are
- exclusive of G.S.T. and any other sale or purchase taxes at any time in force.
- F.O.B. the Company’s premises.
- The prices for Goods quoted by the Company are not firm, and the Company reserves the right to increase or decrease such prices without notice, except where the Company has expressly stated in writing that a price is firm and during what period the price will be held firm.
- Rise & Fall Conditions apply. The company reserves the right to claim variation on total contract value due to fluctuations in International monetary exchange rates, material costs, transport costs, insurance costs and other applicable increases in charges/costs that may disadvantage the company
PROPERTY AND RISK IN GOODS
- Risk in any goods supplied by the Company to the Buyer shall pass when such goods are delivered to the Buyer or into custody on the Buyer’s behalf but ownership and property in each item of goods supplied is retained by the Company until payment in full of the purchase price for the same and for all other goods supplied by the Company to the Buyer and until property so passes to the Buyer shall-
- hold each item thereof as bailee of the Company and otherwise subject to clauses (e) to (o) below;
- store the same in such a manner as enables them to be readily identified and distinguished from other property in possession of the Buyer that is not held by the Buyer as bailee of the Company;
- deliver the same to the Company upon demand by the Company.
- In the event that any item of goods supplied by the Company is sold by the Buyer prior to payment in full of the purchase price for the same and for all other goods supplied by the Company to the Buyer, then such proceeds of sale shall be the property of the Company.
- Subject to clauses (e) to (o) below, in the event that prior to payment in full of the purchase price for all goods by the Company any item of such goods is used by the Buyer to manufacture or fabricate other products of which such item forms a constituent part, the Buyer shall transfer property in such other products to the Company by way of security for payment of monies by the Buyer to the Company on any account and shall store such other goods in such a manner as enables them to be readily identified and distinguished from other property in possession of the Buyer that is not so transferred, and property in such other goods shall pass to the Company upon so stored.
- The provisions of each paragraph of this condition and rights thereby conferred upon the Company are distinct and severable from the provisions of each other paragraph and any invalidity of any thereof (whether as between the Company and the Buyer or the Company and any other person) shall not affect the operation according to its term of each other paragraph.
- This clause applies to the extent that the agreement the Company has with Buyer provides for or contains a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”) (or part of it). The security interest granted to Company is a ‘purchase money security interest’ (“PMSI”) to the extent that it can be under section 14 of the PPS Law.
- The Company may register its security interest. Buyer must do anything (such as obtaining consents and signing documents) which the Company require for the purposes of:
- ensuring that its security interest is enforceable, perfected and otherwise effective under the PPS Law;
- enabling Company to gain first priority (or any other priority agreed to us in writing) for its security interest; and
- enabling Company to exercise rights in connection with the security interest.
- The Company’s rights under its agreement with Buyer are in addition to and not in substitution for its rights under other law (including the PPS Law) and Company may choose whether to exercise rights under its agreement and/or under such other law, as its sees fit.
- The following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of the agreement with Buyer in respect of goods that are not used predominantly for personal, domestic or household purposes:
- sections 95 (notice of removal of accession to the extent it requires Company to give a notice to Buyer), 96 (retention of accession), 125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires Company to give a notice to Buyer); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re-instatement of security agreement).
- The following provisions of the PPS Law:
- section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134(1) (retention of collateral), confer rights on Company. Buyer agrees that in addition to those rights, Company shall, if there is default by Buyer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any hardware and/or Loan Equipment, not only under those sections but also, as additional and independent rights, under this agreement with Buyer and Buyer agrees that Company may do so in any manner its sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
- Buyer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
- The parties agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. Buyer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing the Company to have the benefit of section 275(6)(a) and Company shall not be liable to pay damages or any other compensation or be subject to injunction if it breaches this sub-clause.
- Buyer must not create, purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the hardware and/or Loan Equipment other than with Company’s express written consent.
- Buyer must not lease, hire, bail or give possession of (‘sub-hire’) the equipment to anyone else unless Company (in its absolute discretion) first consent in writing. Any such sub-hire must be in writing in a form acceptable to Company and must be expressed to be subject to Company’s rights under the agreement with Buyer.
- Buyer must take all steps including registration under PPS Law as may be required to:
- ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law;
- enabling Company to gain (subject always to its rights) first priority (or any other priority Company agrees to in writing) for the security interest; and
- enabling each of the parties to exercise their respective rights in connection with the security interest.
- Company may recover from Buyer the cost of doing anything under this clause, including registration fees and the costs of notification.
- Deliveries may be wholly or partially suspended by the Company during any period in which:
- the Buyer has failed duly to pay any monies owing to the Company within the timeframe as stipulated by the agreed terms of supply. The Company shall without prejudice to any other rights of the Company) be entitled to be fully indemnified by the Buyer against all or any loss rising through or in connection with such suspension of delivery and to withhold delivery of any other goods ordered by the Buyer until the Buyer shall have paid the amount in dispute in full;
- the company may be prevented or hindered from effecting delivery by its normal means of supply or delivery by normal route by reason of any circumstances outside its reasonable control (including but not limited to strikes, lockouts, shortages of materials, accidents or breakdowns of plants or machinery.) In the event that because of short supply of any goods the Company should be unable to supply, it may in its sole and unfettered discretion supply a portion of available supply to any of its Buyers without being thereby in breach of contract.
- The Company shall be under no liability in respect of damage of goods or incomplete delivery unless the Buyers written claim is received by the Company within 7 days of receipt of goods
- Where any time of delivery is mentioned by the Company, this is only an indication given in good faith or what the Company expects to be able to achieve, the Company does not guarantee delivery within any such time, and (without prejudice to the generality of condition 9) the Company shall not be liable in any way whatever for not delivering within any such time.
To the extent permitted by law, the Company shall not be liable in any way whatever whether in contract, tort or otherwise for or in connection with any defects affecting any Goods of the Company or in any delay or any loss damage or injury (whether physical, financial or otherwise) however such defects delay, loss or damage may be caused, whether by the neglect or default of the Company, its officers, employees or agents or otherwise, and whether caused directly, indirectly or otherwise.
These Conditions of Sale shall apply (mutatis mutandis) to any goods supplied by the Company by way of replacement.
Unless prior arrangements have been made, and confirmed in writing all sales shall be cash on delivery. Where an agreement for credit payment have been made, the payment terms will be 7 days nett (unless other terms have been specified and agreed to in writing).
- The Company in respect of goods manufactured by third party manufacturers have taken reasonable steps to satisfy itself that the possession, use or resale of such goods will not infringe any intellectual property but give no warranty in this respect.
- If the Company manufacture specific goods on instructions from a Buyer and particularly using drawings supplied by such a Buyer, the Buyer hereby indemnifies the Company against any claim for breach of intellectual property caused by the manufacture or sale of the goods.
Should this be a quotation or price guide the following information should be noted:
- All prices are nett ex works and do not include tax or delivery, which are extra at cost.
- Any quotation is valid from 14 days from date shown.
- The Companies condition of sale will apply to any order accepted for delivery by customer unless any alternative terms agreed to in writing by the Company
LIMITATION OF LIABILITY
- A reference to (a) ‘us’, ‘our’, ‘we’ means the Company; (b) ‘you’, ‘your’ means the Buyer; (c) ‘Claim’ means any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim); and (d) means loss or damage suffered by a party and arising in connection with or out of your Contract or any supply made under it (whether pleaded in contract, tort, breach of statutory duty or on any other basis, and whether arising from acts or omissions, and whether or not loss or damage the risk of which another party was or should have been aware), including but not limited to (i) economic loss; (ii) business interruption; (iii) loss of revenue, profits, actual or potential business opportunities or contracts; (iv) anticipated savings; (v) loss of profits; (vi) loss of data; (vii) indirect or consequential loss; (viii) an obligation to indemnify another person; and (ix) an obligation to contribute to the compensation of loss or damage suffered by another person.
- If we supply you with goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and cost no more than $40,000 you have important rights under the ACL (Australian Consumer Law) including Consumer Guarantees and remedies but:
- in relation to these goods, our liability for failure to comply with a Consumer Guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:
- replacing the goods or supplying equivalent ones;
- repairing the goods;
- paying the cost of replacing the goods or of acquiring equivalent ones; or
- paying the cost of having the goods repaired; and
- in relation to these services, our liability for failure to comply with a Consumer Guarantee is limited to:
- supplying the services again; or
- paying the cost of having the services supplied again.
- If we supply you with non-PDH Goods or Services that cost no more than $40,000, and you are told they come with a ‘manufacturer’s warranty’ or ‘one year product assurance’ or similar, those rights are in addition to, and not instead of, your rights under the ACL.
- To the extent that our negligence causes personal injury or death, we accept liability on normal principles of law.
- Important consumer information: Nothing in this clause 13.4 limits the consumer rights and remedies referred to in clauses 13.2. Subject to clause 13.2 any representation, warranty, condition or undertaking (whether in favour of you or of us) that would be implied in your Contract by legislation, common law, equity, trade custom or usage or otherwise is excluded from your Contract to the fullest extent permitted by law.
- Important consumer information: Nothing in this clause 13.5 limits the consumer rights and remedies referred to in clause 13.2. Subject to your rights under the ACL and clause 13.2, we are never liable to you for, and you release us from any Claim for, any Loss.
- Important consumer information: Nothing in this clause 13.6 limits the consumer rights and remedies referred to in clause 13.2 and under the ACL. If:
- you are an ACL Consumer or an ACL Small Business; and
- clause 13.5 is determined by a court or tribunal to be Unfair –
then clause 13.5 will not apply but:
- neither of us is liable to the other for economic loss, business interruption, loss of revenue, profits, actual or potential business opportunities or contracts, anticipated savings, loss of profits, loss of data, indirect or consequential loss, an obligation to indemnify another person, or an obligation to contribute to the compensation of loss or damage suffered by another person.
Version 4.17 last reviewed January 2017