TERMS AND CONDITIONS OF SALE
G.V. Kinsman Pty. Ltd. herein called the “Seller” agrees to sell the goods specified to the Purchaser on the Terms and Conditions contained herein.
1. Definitions
1.1 In these Conditions the following words shall have the following meaning unless the contrary intention appears:
“The Seller” means G.V. Kinsman Pty. Ltd.
“The Customer” means the described
“The Purchase Price” means the total of the price specified for the supply of the goods by the Seller to the Customer.
“The Goods” means all or any of the products specified.
“Order” means any offer made by the Customer to the Seller to purchase the goods from the Seller.
1.2 Headings have been inserted for guidance only and do not form any part of the text.
2. Sale and Purchase
2.1 These terms and conditions supersede any oral or written communications between the Seller and the Customer and represent the complete agreement of the parties and no terms and conditions in any way modifying the provisions stated herein shall be binding upon the Seller unless hereafter made in writing and signed by one of its officers. No modification shall be effected by the Seller’s delivery of goods following receipt of the Customer’s Purchase Order, Invoice, Delivery Request or other document containing printed terms and conditions in conflict or inconsistent with the terms herein.
2.2 The Seller agrees to sell the Goods to the Customer and the Customer agrees to purchase the Goods from the Seller for the Purchase Price.
2.3 Notwithstanding Clauses 2.1 and 2.2 hereto the Seller may at any time increase the Purchase price for any of the Goods specified to the extent that the landed costs of those Goods to the Seller increases between the date that the order is accepted by the Seller and the date when the Goods are delivered to the Customer.
2.4 Without limiting the scope and generality of Clause 2.3 hereto there shall be taken to be an increase in the landed costs of Goods to the Seller if:-
(i) There is increase in the customs duty applying to the Goods, or
(ii) There is a change in the rate of exchange at which the Seller can purchase with Australian dollars the currency in which the price of those Goods to the Seller is calculated or there is a change in any other rate of exchange offering the price of those Goods to the Seller and cost of those Goods to the Seller increases as a result of that change.
2.5 Orders accepted by the Seller are not subject to cancellation by the Customer except upon the written approval of the Seller. In the event that the Customer cancels an order which has been accepted by the Seller or otherwise refuses or fails to take delivery of the Goods the Seller may at its option recover from the Customer as liquidated damages an amount equal to the manufacturing costs incurred by the Seller and the costs of transportation to the Seller of the Goods. The Seller may however sue the Customer for breach of contract and seek to recover its loss and at its option recover from the Customer as liquidated damages an amount equal to the manufacturing costs incurred by the Seller and the costs of transportation to the Seller of the Goods. The Seller may however sue the Customer for its breach of contract and seek to recover its loss and damage.
3. Payment
3.1 If an order has been accepted by the Seller and the Seller has not agreed in writing to extend credit to the Customer the Customer shall pay the Purchase Price to the Seller in full on delivery of the Goods.
The Seller however reserves the right to require payment of the Purchase Price prior to delivery or to require that security be lodged for payment before delivery.
3.2 If the Seller has agreed in writing to extend credit to the Customer the Customer shall pay the Purchase price to the Seller in full within 30 days from the date of the statement sent by the Seller to the Customer in relation to the Goods.
4.Title and Property
4.1 The legal and equitable title to and the property in the Goods shall not pass from the Seller to the Customer until the Customer has paid the Purchase Price in full to the Seller in accordance with the clause 3.1 (as the case maybe). Until such time the Customer shall possess the Goods as fiduciary agent and bailee of the Seller entrusted as such by the Seller and shall not resell or transfer possession of the Goods other than in the ordinary course of business of the customer and shall store the goods separately from the Goods of the Customer in such a way that they be recognized and remain identifiable as the property of the Seller. Where the Customer sells or disposes of the Goods or any of them before the Purchase Price has been paid in full the Customer shall hold the proceeds of the sale and the benefits of all contracts or agreements for sale of the goods in a separate account within the time specified in clause 3.2 hereto and account to the Seller for the proceeds.
4.2 Notwithstanding clause 4.1 herein the Goods shall be at the Customers risk after they leave the possession of the Seller. If requested by the Customer in writing to do so, the Seller shall at the Customer’s expense insure the Goods against loss or damage from the time that they leave the Seller’s premises until title to the goods passes to the Customer.
5. Delivery
5.1 After the Seller has accepted an order from the Customer the Seller shall deliver the Goods to the Customer at the delivery address specified and the customer is deemed to have accepted the Goods unless within seven (7) days after the date of delivery of the Goods the Seller receives written notice of rejection. Acceptance as defined herein shall constitute acknowledgement of full performance by the Seller of all of its obligations hereunder. Unless otherwise expressly provided in writing, all costs of transportation are to be paid and borne by the Customer and delivery of the Goods to the carrier shall constitute delivery to the Customer.
5.2 The Seller may substitute and modify Goods provided the substituted or modified Goods comply with the general description of the Goods specified in the Customer’s order.
5.3 The Seller may deliver up to ten per cent (10%) above or below the quantity specified in any Customer order Seller will invoice the Customer for the quantity delivered to the Customer.
5.4 Unless otherwise expressly provided in writing:
(a) All costs of transportation are to be paid and borne by the Customer and delivery of the goods to the carrier shall constitute delivery to the Customer.
(b) The Seller has the right to nominate the freight company for delivery of goods to the customer.
5.5 The Seller shall not be liable for failure to deliver or for delayed delivery by reason of any or all of the following:
(a) fires, floods or other casualties;
(b) wars, riots, civil uprisings, government regulations, or Sellers inability to obtain necessary materials from its normal source of supply;
(c) delays in transportation from the manufacturer to the Seller howsoever caused;
(d) existing or future strikes or other labour troubles affecting production or delivery whether involving employees of the Seller or employees of others regardless of responsibility or fault on the part of the employer;
(e) other contingencies of manufacturer or delivery whether or not of a class mentioned and not reasonably within the Seller’s control.
5.6 Notwithstanding anything referred to in Clause 5.5 above any date for delivery which may be specified by the Seller in a quotation or an order or otherwise is an estimate only. The Seller shall take all reasonable steps to deliver the Goods on or about any such date. However the Seller shall not be liable for failure or delay in delivery or for any loss or damage resulting directly or indirectly from any failure or delay in delivery of the Goods irrespective or whether any such failure or delay is negligent or is within the Seller’s control or otherwise.
6. Warranties
6.1 Subject to Clause 6.3 the Seller warrants to the Customer that:-
(i) Any part of the Goods (except components, parts or equipment manufactured by others) which proves to be defective in workmanship or material and which is returned to the Seller’s premises (freight charges having been paid by the Customer) within 90 days from the date of the original delivery by the Seller will be repaired or replaced without charge to the Customer except for such charges as are incurred by the Seller in redelivery.
(ii) in the event that the Goods fail to meet specifications contained in the Order and the said Goods are returned to the Seller at the Customer’s expense, within seven (7) days from the date of delivery of the Goods to the carrier, pursuant to Clause 5.1 hereof, the Seller will refund any payments made on account hereof;
(iii) The Seller shall be responsible for components, parts or equipment manufactured by others only to the extent that the Seller can assign to the Customer the benefit of warranties by such manufacturers. The Seller’s total liability to the Customer shall not be greater than the price of the goods sold and shall not include any consequential damage of any kind;
(iv) Sellers liability and obligations with respect to any claim(s) resulting from or relating to this agreement or sale whether in contract, strict liability, negligence or other tort or wrong shall be limited to the total purchase price received by the Seller for the Goods delivered to the Customer. The Customer, by accepting delivery of the Goods agrees that it indemnifies and holds harmless Seller from and against all claims, loss damage and liability by or to any person including without limitation, for personal injury, property damage or commercial loss of whatever kind directly or indirectly arising from or relating to the hazards inherent in the Customers facilities or activities.
6.2 It is the responsibility of the Customer to determine, on the basis of the most current written technical data, the suitability of the Goods and of any system design or drawings for the intended use if the Goods and their compliance with applicable laws, regulations, code and standards and the Customer assumes all risks pertaining thereto.
6.3 This agreement does not contain any warranties and conditions, express of implied, other that the warranties set out in Clause 6.1 therein. The Customer shall not have any rights against the Seller in contract or in tort or otherwise except as provided by Clause 6.1 and 6.3 therein.
6.4 These terms and conditions shall be not read or implied so as to purport to exclude, restrict or modify any condition, warranty, obligation, liability right or remedy which is implied, conferred or imposed by virtue of any statute including the Trade Practices Act (as amended) (“the Act”) rule or regulation insofar as and to the extent to which such condition, warranty, obligation, liability, right or remedy cannot lawfully be excluded, restricted or modified. Provided that in the Agreement between the Seller and the Customer provides the basis for the supply of goods or services which are not of the kind ordinarily acquired for personal, domestic or household use or consumption to a consumer as defined in the Act then the Seller’s liability for breach of a condition or warranty implied into the Agreement by the Act is limited to:
(a) where the breach is capable of being remedied by repairing of the Goods and if the Seller elects so to do the repair of the Goods; and
(b) in any other case the replacement of the Goods or the supply of equivalent Goods; provided that this clause will not apply if the Customer establishes that reliance on it by the Seller is not fair and reasonable.
7. Waiver
7.1 Failure at any time by the Seller to insist on strict performance of any term or condition hereof shall not be construed as a waiver of such term or condition or any breach thereof, nor shall such failure in any way affect the Seller’s legal remedies with respect to any default by the customer hereunder.
8. License
8.1 Neither this document nor any purchase of Goods hereunder shall be construed to confer upon the customer any license under any parent or other proprietary rights of the Seller, except the right to use such Goods for the purpose of which they are sold.
9. Governing Law
9.1 The supply of the Goods by the Seller to the Customer and these terms and conditions shall be governed by and construed in accordance with the laws of the State of Victoria and the Parties hereby submit to the jurisdiction of the Courts thereof.