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ABN 63 606 991 897 Sales: 1300 880 154
Fax: +61 9548 5176 P.O. Box 5008, Cheltenham East, VIC 3192 Email: sales@edsonglobal.com TERMS & CONDITIONS OF SALE
“Seller” means Edson Global Pty Ltd, PO Box 5008, Cheltenham East, Victoria, Australia, 3192. “Buyer” means the purchaser of the goods specified. “Goods” means the products and, if any, services specified. Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including without limitation the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.
These conditions (which shall only be waived or varied in writing signed by the seller) shall prevail overall conditions of the buyer’s order to the extent of any inconsistency.
The goods and all other products sold by seller are sold on these terms and conditions. The cost of any special packing and packing materials used in relation to the goods are at the buyer’s expense notwithstanding that such cost may have been omitted from any quotation. The buyer waives any claim for shortage of any goods delivered if a claim in respect for short delivery has not been lodged with the seller within seven (7) days from the date of receipt of goods by the buyer. (a) The seller is not responsible to the buyer or any person claiming through the buyer for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the seller is legally responsible for the person who caused or contributed to that loss or damage). (b) The seller must provide the buyer with such assistance as may be necessary to press claims on carriers so long as the buyer: (1) has notified the seller and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and (2) lodges a claim for compensation on the carrier within (3) days of the date of receipt of goods.
Unless otherwise specified in the quotation or invoice or agreed in writing, prices quoted or stated: (a) represent the prices for standard Equipment supplied by the Company and any variations or modifications to the equipment required by the Buyer shall be at the cost of the Buyer. (b) are ex-stock in a factory and are subject to a delivery charge. (c) do not include sales tax which, if payable, will be at the Buyer’s cost but are inclusive of import duty. (d) are subject to change without notice between the date of the quotation or invoice and the date of delivery, and without limiting the generality of the foregoing the Company may change the price if there have been variation in sales tax or import duty in that time. In addition in the event that the Equipment has been or is to be imported, and the prevailing exchange rate (as determined by the rate issued by the Commonwealth Trading Bank for a spot transaction between Australia and the country from which the Equipment is imported) fluctuates in excess of 1% in that period the Company reserves the right at its sole discretion to adjust the prices for the Equipment and the Buyer agrees to promptly remit to the Company the amount of such adjustment. (e) Subject to Rise and Fall variation.
Where part of the Equipment is delivered the Company reserves the right to require proportionate payment as determined by the Company. (a) unless otherwise stated all prices quoted by vendor are net, exclusive of Goods and Services Tax (GST). (b) Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production ruling on the date is made. (c) If the seller makes any alterations to the price of the goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the buyer’s account. The purchase price in relation to goods is payable net and payment of the price of the goods plus GST must be made on or before the thirtieth day after the invoice date following the delivery of the goods unless other terms of payment are expressly stated in these conditions in writing.
(a) Unless otherwise specified in writing, delivery shall be deemed to take place at the time of physical taking of the Equipment by the Buyer or by the carrier whether engaged by the Company or the Buyer or when the Buyer has been informed that the Equipment is ready for collection. (b) If after delivery or notification of readiness the Equipment remains in the possession of the Company, the Buyer shall pay a reasonable amount for storage and other reasonable charges in relation to the Equipment whilst it remains in possession of the Company. (c) Risk in the Equipment shall pass to the buyer on delivery and thereafter risk of loss of or damage to or deterioration of the Equipment from any cause whatsoever shall be borne by the Buyer. (d) Upon request of the Buyer, the Company will arrange transport of the Equipment on behalf of the Buyer at the Buyer’s cost. Transport insurance will also be affected by the Company if requested by the Buyer and be at the Buyer’s cost. (e) Any delivery time or date quoted or stated is based on the situation prevailing at the time of preparation of the quotation. The Company will make every effort to hold to the delivery time or date. However, the Company does not accept liability for failure to meet the given delivery time or date. (f) If the Buyer takes delivery by physical possession of the Equipment outside normal working hours, the Company reserves the right to make an additional charge. (a) The delivery times made known to the buyer are estimates only and the seller is not liable for late delivery or non-delivery. (b) The seller is not liable for any loss, damage or delay occasioned to the buyer or its customers arising from late or non-delivery or late installation of the goods. (c) The seller may at its option deliver the goods to the buyer in any number of instalments unless there is an endorsement overleaf to the effect that the buyer will not take delivery by instalments. (d) If the seller delivers any of the goods by instalments, and any one of those instalments is defective for any reason: (1) It is not a repudiation of the contract of sale formed by these conditions; and (2) the defective instalment is a severable breach that gives rise only to a claim for compensation.
(a)(i) Unless specified all equipment and/or material manufactured by the Company is warranted against defective material and workmanship for twelve months from the date of commissioning or fifteen months from the date of delivery whichever occurs first and in fulfilment of any breach of such warranty the Company’s sole obligation shall be to replace f.o.b. factory any part or parts that are returned f.o.b. factory, shipping charges prepaid, and which examination shall disclose to have been defective; all equipment and/or material not manufactured by the Company shall carry only such warranty, if any, as is furnished by the manufacturer thereof. (ii) Except to the extent to which any Commonwealth, State or Territorial law applies to this contract and implies conditions or warranties which cannot be excluded, these Conditions supersede and exclude all other conditions and warranties which whether expressed or implied by law and all prior agreements and representations. (iii) Where a law which implies the in excludable conditions and warranties referred to in (ii) above of this clause allows a liability of the Company to be limited in respect of a breach of any one or more of those conditions and warranties to a minimum it is a term of these conditions of sale that the Company’s liability is limited to that minimum level. (b) All labour charges in relation to warranty claims shall be to the Buyer’s account unless commissioning is purchased in which case 90 days free labour from the date of commissioning shall apply or unless an extended Warranty period is purchased in which case the extended period shall apply. (c) Loss damage or injury resulting from any one or more of the following will not be covered by the warranty:
(d) Without limiting the generality of the above, the warrant will not apply:
The seller’s liability for goods manufactured by it is limited to making good any defects by repairing the defects or at the seller’s option by replacement, within a period not exceeding twelve (12) calendar months after the goods have been dispatched so long as: (a) defects have arisen solely from faulty materials or workmanship; (b) The goods have not received maltreatment, inattention or interference; (c) Accessories of any kind used by the buyer are manufactured by or approved by seller; (d) The seals of any kind on the goods remain unbroken; and (e) The defective parts are promptly returned free of cost to the seller. If the goods are not manufactured by the seller the guarantee of the manufacturer of those goods is accepted by the buyer and is the only guarantee given to the buyer in respect of the goods. The seller agrees to assign to the buyer on request made by the buyer the benefit of any warranty or entitlement to the goods that the manufacturer has granted to the seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable. The seller is not liable for and the buyer releases the seller from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the seller and the responsibility for any claim has been specifically accepted by the seller in writing. In any event the seller’s liability under this paragraph is limited strictly to the replacement of defective parts in accordance with paragraph 11(1) of these conditions. Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the seller’s negligence or in any way whatsoever. The seller’s liability for a breach of a condition or warranty implied by Division 2 of Part V of the Trade Practices Act 1974 (other than section 69) is limited to: (1) in the case of goods, any one or 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; or (2) in the case of services: (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again. The seller’s liability under section 74H of the Trade Practices Act 1974 is expressly limited to a liability to pay to the purchaser an amount equal to: (1) the cost of replacing the goods; (2) the cost of obtaining equivalent goods; or (3) the cost of having the goods repaired, whichever is the lowest amount.
The Company shall not be responsible for the performance of the Equipment under conditions which are different from those under which it is normally test4tested nor for damage thereto caused to be abnormal use or temperatures. Any literature or drawings produced by the Company in connection with the Equipment or this contract are for reference only and do not form part hereof and any variation there for shall give the Buyer no cause for complaint and the Company shall be entitled to make any change it sees fit in design or construction of or materials used in the Equipment. (a) All specifications, drawings, and particulars of weights and dimensions submitted to the seller are approximate only and any deviation from any of these things does not vitiate any contract with the seller or form grounds for any claim against the seller. (b) The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the goods or of the description applied to the goods. (c) Where specifications, drawings or other particulars are supplied by the buyer, the seller’s price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by seller and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation. Any performance figures given by the seller are estimates only. The seller is under no liability for damages for failure of the goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognized tolerances applicable to such figures.
Subject always to clause 4, the Company shall not be liable for any injury, loss or damage (including consequential injury loss or damage) arising in any way out of the sale, installation, possession, maintenance, use or operation of the Equipment by the Buyer whether such injury loss or damage arises from the negligence of the Company or from any other cause.
Any quotation is current for a period of 30 days and acceptance will not be binding on the Company until confirmed by it in writing. Terms, conditions or statements not set out will not form part of any contract resulting here from nor shall the same be construed as warranties or representation including acceptance hereof. Unless previously withdrawn, seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date. The seller reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.
If the Buyer shall require variations to the terms hereof or modifications or additions to the equipment the same shall not be binding on the Company unless it has agreed thereto and to any resulting changes in price or terms in writing.
The Buyer undertakes to carefully inspect the Equipment upon delivery and give the Company written notice of any damage or loss for which the Company may be liable within three days of the delivery date or time. The Buyer agrees that it will not on or after the expiration of three days from the delivery date or time make any claim in respect of any damage or loss which he ought reasonably discovered on such careful inspection.
If at any time the Buyer purports to terminate and/or repudiate or cancel any contract entered into with the Company, then and without prejudice to any other rights or remedies which the Company may have, the Company shall be entitled to recover from the Buyer such proportion of the total contract price as shall be equivalent to the proportion of labour skill and materials used by the Company in its performance of the contract of the total of such labour skill and materials required to complete the contract. Provided that such proportion shall not be less than 5% of the total contract price. A written statement by the secretary or other authorized officer of the Company stating the proportion of the contract price to be paid under this provision shall be conclusive evidence of the amount payable by the Buyer.
If tests are requested by the Buyer to determine the performance of the equipment covered by the Company’s quotation form, the test procedure to be used must be acceptable to the Company and the Buyer agrees to reimburse the Company for the costs of any such test.
(a) Where commissioning of the Equipment is required, the Buyer will give the Company at least 14 days prior notice of the date that the installation of the Equipment and all necessary steps to enable commissioning to commence are to be completed. (b) The Company will make every reasonable effort to commission the Equipment as soon as practicable after all necessary steps to enable commissioning to commence have been completed. (c) If the Equipment, on inspection by the Company, is not in its opinion ready for commissioning, the Company will be entitled to withdraw from the site and charge the Buyer for its costs in time, travel and visit to the site and for other reasonable incidental expenses. (d) Unless otherwise specified in the quotation or invoice or agreed in writing, the prices stated or quoted do not include commissioning, which is chargeable at the Company’s service rates prevailing at the time when the commissioning is completed. (e) A responsible representative of the Buyer may be required to be on site during the commissioning period.
Any information provided by the company concerning noise and vibration will be given in an advisory capacity only, and is not considered part of the Company’s warranty. The Company will not accept any responsibility for noise and/or vibration unless specifically stated herein.
(a) The price of the Equipment may be credited by prior agreement if returned within seven days of delivery, free into store, in the original packing, in an unsoiled, undamaged and resalable condition, accompanied by the relevant invoice and reason for return (b) Equipment made to special order or Equipment which has been varied or altered at the request of the Buyer cannot be returned or credited. (c) The seller is not under any duty to accept goods returned by the buyer and will do so only on terms to be agreed in writing in each individual case. (d) If the seller agrees to accept returned goods from the buyer under paragraph (c) of this clause, the buyer must return the goods to the seller at the seller’s place of business referred to at the head of these conditions. (e) Items returned to the seller from the buyer under paragraph (d) of this clause are subject to a restocking fee of twenty-five (25) percent of the value of the original Goods supplied inclusive of GST.
Any modification required to the equipment or associated materials to meet any specific legislation including regulations and by-laws shall be at the cost of the Buyer.
Property in goods shall not pass until payment in full has been effected. If the Buyer resells the equipment or materials prior to making full payment to the Company the Buyer shall hold the proceeds of such a sale on trust for the Company. In connection with the goods while they remain the property of the seller, the buyer agrees with the seller that: (1) the buyer has no right or claim to any interest in the goods to secure any liquidated or unliquidated debt or obligation the seller owes to the buyer; (2) the buyer cannot claim any lien over the goods; (3) the buyer will not create any absolute or defeasible interest in the goods in relation to any third party except as may be authorized by the seller; (4) where the buyer is in actual or constructive possession of the goods: (a) the buyer will not deliver them or any document of title to the goods to any person except as directed by the seller; and (b) it is in possession of the goods as a bailee of those goods and owes the seller the duties and liabilities of a Bailee. In connection with the goods, the seller states to the buyer that: (a) the seller has the right to supply the goods to the buyer; (b) the activities of the buyer in supplying the goods do not infringe the rights of the owner of the goods (where the seller is not the owner of the goods); (c) if the goods are not owned by the seller, that the seller is authorized to supply the goods to the buyer. The seller and the buyer agree that: (a) the property of the seller in the goods remains with the seller until the seller has been paid in full for the goods under all individual contracts for the supply of the goods between the seller and the buyer; (b) the buyer is a Bailee of the goods until such time as property in them passes to the buyer and that this bailment continues in relation to each of the goods until the price of the goods has been paid in full; (c) pending payment in full for the goods, the buyer: (1) must not supply any of the goods to any person outside of its ordinary or usual course of business; (2) must not allow any person to have or acquire any security interest in the goods; (3) must insure the goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorized to conduct the business of insurance in the place where the buyer carries on business; (4) must not remove, deface or obliterate any identifying plate, mark or number on any of the goods. Despite the above clause, if the buyer supplies any of the goods to any person before all moneys payable by the buyer have been paid to the seller (and have not been claimed or clawed-back by any person standing in the place of or representing the buyer), the buyer agrees that: (a) it holds the proceeds of re-supply of the goods on trust for and as agent for the seller immediately when they are receivable or are received; (b) it must either pay the amount of the proceeds of re-supply to the seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the seller. (c) any accessory or item which accedes to any of the goods by an act of the buyer or of any person at the direction or request of the buyer becomes and remains the property of the seller until the seller is paid in accordance with the above clause when the property in the goods (including the accessory) passes to the buyer; (d) if the buyer fails to pay for the goods within the period of credit (if any) extended by the seller to the buyer, the seller may recover possession of the goods at any site owned, possessed or controlled by the buyer and the buyer agrees that the seller has an irrevocable license to do so.
The Buyer agrees that any Terms and Conditions referred to by the Buyer or contained on a Purchase Order or other Document submitted by the Buyer which are inconsistent, contradictory or additional with or to these conditions shall be read and be deemed to be read as if the same were expunged and these conditions inserted in their stead.
Any property of the buyer under the seller’s possession, custody or control is completely at the buyer’s risk as regards loss or damage caused to the property or by it.
The seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the buyer within fourteen days of a request by the seller for such instructions. The parties agree that the seller may charge for storage from the first day after the seller may charge for storage from the first day after the seller requests the buyer to provide delivery instructions.
All goods to be supplied by the seller to the buyer are as described on the purchase order agreed by the seller and the buyer and the description on such purchase order modified as so agreed prevails over all other descriptions including any specification or enquiry of the buyer.
(a) The contract for sale of the goods is made in the state or territory of Australia from which this document is issued. (b) The parties submit all disputes arising between them to the courts of such state or territory and any court competent to hear appeals from those courts of first instance.
The buyer acknowledges that they have read and understood the conditions of sale and agree to abide to said conditions. |
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