TERMS AND CONDITIONS OF SALE
1.1. The Company (Air And Aqua Tech Pty Ltd) will only deal on these terms and conditions of sale.
1.2. No variation or modification of or substitution for these terms and conditions of sale (even if included in or referred to in the Customer’s order) will be binding on the Company unless accepted by the Company in writing.
1.3. The Company may from time to time vary these terms and conditions by notice in writing to the Customer.
2.1. An order for the purchase of goods from the Company made by the Customer will be taken to be an offer to the Company incorporating these terms and conditions of sale.
2.2. All quotations given and all orders accepted are subject to these conditions.
All prices are based upon the rates and conditions prevailing at the date of the Customer’s order. The Company reserves the right to vary the price in accordance with any variation in exchange rates, costs of labour, materials, transport, freight and insurances, customs duties, sales taxes and other duties, imposts and surcharges and all other expenses incurred or arising due to circumstances beyond the control of the Company between the date of a contract and the date of delivery.
4.1. Unless otherwise agreed in writing, progress payment shall be on order placement, and complete payment prior to dispatch of goods, to the Customer.
4.2. All payments due to the Company are to be made in full on the due date without deduction of any nature whatsoever whether by way of set-off, counterclaim or other equitable or lawful claim or otherwise howsoever.
4.3. Without limiting clause 14, should payment in full not be paid to the Company by the due date then:
4.3.1. the Customer shall pay interest on the outstanding monies at the rate of two point five percent (2.5%) per month, which interest shall accrue on a daily basis and shall accrue after as well as before judgement;
4.3.2. the Customer shall also be liable to pay all expenses and legal costs of the Company (calculated between solicitor and own client) in relation to obtaining or seeking to obtain remedy of default in payment by the Customer;
4.3.3. the Company shall have the option of suspending delivery to the Customer until the Customer has effected payment in full.
4.4. The Company reserves the right to treat each separate delivery as a separate contract for the purposes of payment.
4.5. The Customer shall pay to the Company all goods and services tax or other value added tax on goods supplied by the Company to the Customer pursuant to any contract (including such tax payable in the event of default by the Customer). The amount of any such tax shall be due and payable at the same time as the payment on which it is levied is due.
5. FREIGHT AND DELIVERY
5.1. The Company shall arrange all freight. The cost of such freight will be to the Customer’s account, unless otherwise specified.
5.2. The Customer shall provide suitable vehicular access and a suitable area for unloading to enable unloading to be undertaken immediately upon delivery. Offloading shall be the Customers responsibility.
5.3. The Customer shall on or before the acceptance of its order give the Company reasonable notice of the date(s) on which and the place(s) to which delivery of the goods is required.
5.4. Delivery shall be complete on arrival of the goods at such place(s) as notified by the Customer.
5.5. If the Customer does not accept delivery of the goods or should the Company withhold delivery pending payment or adequate arrangement as to payment, delivery shall be deemed to have been made when the Company is or was willing to deliver the goods and:
5.5.1. the Company shall be entitled to charge as an addition to the purchase price of the goods reasonable storage and transportation charges; and 5.5.2. the Customer shall nevertheless make any payments provided herein upon the basis that such
delivery has been effected.
5.6. The Company reserves the right to deliver by instalments and each instalment shall be deemed to be a separate contract subject to these terms and conditions of sale.
5.7. Failure to make any delivery and/or defective delivery shall not prejudice the right of the Company to make subsequent deliveries nor shall it entitle the Customer to refuse to accept the same or to terminate the contract either as a whole or in part or to any right or claim for damages whether for delay, non-delivery or otherwise whatsoever.
5.8. All claims for errors or short delivery must be made in writing quoting invoice numbers (if an invoice has then been issued) within seven (7) days of receipt of the goods by the Customer.
The Company reserves the right to accept or refuse the return of any goods.
7. RISK AND INSURANCE
7.1. Risk shall pass to the Customer in the following circumstances:
7.1.1. where possession of goods is given to a common carrier, then on taking of possession by the carrier of the goods; and
7.1.2. where goods are delivered by the Company, then on delivery of the goods.
7.2. Freight and transit insurance are to the Customer’s account unless specified to the contrary.
8.1. Property in any goods delivered by the Company to the Customer shall not pass (and the Customer shall be a bailee only in respect of such goods) until the Customer shall have paid all that is owing to the Company
whether in respect of the purchase price of the goods or contingently or otherwise howsoever. Until such time, the Customer shall store all goods delivered by the Company in such a way that they are clearly the property of the Company and shall not intermingle the goods in any manner whatsoever.
8.2. If prior to its acquiring property in any goods the Customer shall sell or purport to sell the same the Customer shall be deemed to be selling or purporting to sell as the agent of the Company, and shall hold as trustee for and hand over to the Company the claims it has against its purchaser in respect of each sale.
8.3. If prior to its acquiring property in any goods the Customer makes any new objects from such goods or intermingles such goods with any other objects or if such become a constituent of any other object, then property in such object or objects shall in any event forthwith be vested in the Customer as surety for all sums owing to the Company whether in respect of the purchase price of the goods or contingently or otherwise howsoever.
8.4. Prior to the Customer acquiring property in any goods the Company may at any time directly or by its agents or servants enter upon any land, premises or property where it believes such goods may be, to view and inspect the same and, on the occurrence of any of the events listed in clause 14, may immediately determine all credit to the customer and retake possession of such goods.
8.5. Prior to the Customer acquiring property in the goods the Customer will not create or allow to exist any Security Interest in the goods (other than that created by these terms).
9.1. The company warrants that the goods are free from defects in materials and workmanship and further warrants that, where a contract includes specifications to which the goods are to conform, the goods will subsequently conform to such specifications (such warranties being hereinafter referred to as “the Warranty”).
9.2. The Warranty shall apply for a period of eighteen (18) months from the delivery of the goods or twelve (12) months from date of installation, whichever comes first. No claim by the Customer may be made under the Warranty unless made in writing and within the warranty period.
9.3. The Warranty shall apply only to goods manufactured by the Company. Any parts or components obtained by the Company from other sources and used in the manufacture of the goods are not covered by the Warranty. Such parts or components shall be covered by the manufacturer’s warranty (if any) only.
9.4. Without prejudice to the warranty period specified in clause 9.2, notice in writing of any defect must be given to the company within seven (7) days of the defect becoming apparent.
10.1. The Company’s liability under the Warranty shall be limited to replacement or the repair of faulty goods or workmanship (including fault repairs or workmanship provided under this warranty) or to bringing the goods into conformity with any applicable specifications.
10.2. Such replacement or repair shall take place at the Company’s premises and the Customer shall be responsible for the shipment of the goods or of such part of the goods as shall be necessary to and from the Company’s premises. The Company shall not be responsible for the costs of removal or re-installation of the faulty goods.
10.3. The Warranty shall be avoided if the goods are repaired or modified by any person or persons not authorised by the Company to effect such repairs.
10.4. The Warranty shall not apply to damage or defects which arise from the onsequences of natural wear, abnormal use or overload, negligent or improper maintenance, operation contrary to the Company’s instructions or other conditions beyond the Company’s control.
10.5. The Warranty is exclusive of all other warranties, descriptions, representations or conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether of a like nature or not, and whether expressed or implied by law, trade, custom or otherwise. Furthermore, it
is acknowledged that the acquisition of goods by the Customer from the Company pursuant to any contract shall be deemed to be for the purposes of a business and accordingly the Consumer Guarantees Act 1993 shall not apply to the extent not inconsistent with the provisions
10.6. The liability of the Company whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the goods or from any other breach of the Company’s obligations hereunder shall not in any event exceed an amount equivalent to the contract price. The Company shall not be liable for any consequential, indirect or special damage or loss of any kind whatsoever, nor shall the Company be liable for any damage caused by the Customer’s servants, agents, buyers, or other persons (whether similar or not to the foregoing). The Customer shall indemnify
the Company against any claims by the Customer’s servants, agents, buyers, or other persons whatsoever (whether similar or not to the foregoing) in respect of any loss, damage or injury arising from any default in or non-compliance of the goods in respect of any other matter whatsoever.
10.7. No agent or representative of the Company is authorised to make any representations, statements, warranties, conditions or agreements not expressly set forth herein and the Company is not in any way bound by any such representations, statements, warranties, conditions or agreements.
10.8. If plans, specifications and/or requirements have been submitted to the Customer then it shall be the responsibility of the Customer to ensure that the goods supplied will be satisfactory to meet such plans, specifications and/or requirements.
11. PROPRIETARY RIGHTS
All reports, correspondence, drawings, plans, sketches, computations, specifications etc. prepared or made by or for the Company for any purpose in connection with the contract or any tender or quotation shall remain
the property of the Company and confidential between the Company and the Customer and must not be disclosed, loaned, copied or otherwise used without the prior written consent of the Company.
12. DESIGN CHANGES/SPECIFICATIONS
All leaflets, sketches, illustrations or catalogue materials supplied must be treated as a guide only. The Company reserves the right to change design, construction materials, or specifications at any time subject to giving reasonable notice to any affected party.
13. PATENTS, TRADEMARKS ETC.
Where the Company has followed any design or instructions furnished or given by the Customer, the Customer shall save harmless from and indemnify the Company against all damages, penalties, claims, costs and expenses which the Company may incur or for which it may become liable through any work required to be done in accordance with those instructions or designs which involve an infringement or an alleged infringement of any patent, trademark, copyright, registered design or common law rights. The Customer on
its part warrants that any design or instructions furnished or given by it shall not be such as will cause the Company in the execution of the contract to infringe any patent, design, trade mark or common law rights.
If the Customer:
14.1. breaches these terms and conditions of sale;
14.2. makes a default in any payment on the due date;
14.3. if an individual, commits an act of bankruptcy;
14.4. if an incorporated company, passes an effective resolution for its liquidation or a Court makes anorder to that effect;
14.5. if an incorporated company, has appointed a receiver or receiver and manager;
14.6. becomes unable to pay its debts as they fall due or suspends payment to its creditors; or the Company without liability on its part shall have the right to cancel any contract (so far as it remains unperformed) wholly or in part, or any other contract which has not been completed, and all sums outstanding (whether legally demanded or not and whether then due or not) shall become immediately due and payable to the Company.
The Company shall not be liable for failure or delay in supply or delivery occasioned by strike, lockout, Act of God, shortage of stocks, shortage of labour, lack of skilled labour, delays in transit, legislative governmental or other prohibitions or restrictions, fire, flood, hostilities, or other causes whatsoever (whether similar or not to the foregoing) beyond the Company’s reasonable control.
16. WAIVER AND FORBEARANCE
The Company shall not be deemed to have waived any condition unless such waiver shall be in writing under the signature of an authorised officer of the Company and any such waiver, unless the contrary shall be expressly stated, shall apply to and operate only in the particular transaction dealing or matter in respect of which it was given.
17. PRIVACY ACT
The Company shall be deemed to have the consent of the Customer to obtain, collect and release general credit information to any third party in connection with credit management and control purposes.
18. PERSONAL PROPERTY SECURITIES
The Customer acknowledges and agrees that:
18.1. it grants a Security Interest in all present and after-acquired goods as security for the Customer’s obligations to the Company;
18.2. it will do all things and execute and arrange for execution of all such documents as in the Company’s opinion are necessary or desirable to ensure that the Company has a perfected first ranking Security Interest in the goods;
18.3. it will reimburse the Company for any cost the Company incurs in registering, maintaining and/or enforcing the Security Interest created by these terms;
18.4. it will immediately notify the Company of any change in the Customer’s name.
The Customer warrants that the particulars set out in the attached application are accurate and complete in all respects. The Customer will immediately advise the Company if any of those particulars changes.
In these terms and conditions of sale:
20.1. “Company” means Air And Aqua Tech Pty Ltd and its successors and assigns;
20.2. “Customer” means the party placing an order to purchase goods from the Company or with whom the Company enters into a contract;
20.3. “goods” means all products, parts and materials supplied or to be supplied by the Company to the Customer from time to time including all products, parts and materials referred to in any invoice issued by the Company at any time and from time to time and includes any services wherever applicable;
20.4. clause and other headings are for ease of reference only and shall not be deemed to form any part of the context or to affect the interpretation of these terms and conditions of sale;
20.5. words importing the singular number shall include the plural and vice versa;
20.6. references to parties are references to the Company and the Customer;
20.7. references to clauses are references to clauses of these terms and conditions of sale; and
20.8. any obligation not to do anything shall be deemed to include an obligation not to suffer, permit or cause that thing to be done.