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- Quality Lifting Systems
- Design & Installation
- Servicing Queensland Industry
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Brisbane, Australia
PH: (07) 3356 4133 |
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General Conditions of Sale
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1. DEFINITIONS
"Company" means Vital Machines Pty Ltd. ACN 108 230 039
"Conditions" means these terms and conditions of sale, as amended by the Company
from time to time.
"Confirmation" means the Company's internal processing of an Order.
"Customer" means any person who has placed an Order with the Company or requests
a Quotation from the Company.
"Goods" means any goods requested by a Customer in an Order which has been accepted
by the Company.
"Order" means an order for the supply of goods by the Company or the services by
the Company of goods supplied by the Company.
"Overdraft Rates" refer directly to the Company's preferred bank and the overdraft
rates that apply at the time of application.
"Person" includes any statutory authority and any entity recognised and governed
by the Corporations Law.
"Quotation" means an offer made by the Company in writing to a Customer specifying
the prices at which and the conditions pursuant to which particular goods and/or
services will be supplied by the company.
"Services" means any services provided, or to be provided, by the Company pursuant
to an Order which has been accepted by the Company.
"Warranty" means the warranty provided by the Company to its Customers.
2. CONDITIONS TO PREVAIL
These Conditions constitute the terms and conditions upon which the Company will
supply goods and/or services to the Customer and take precedence over any terms
and conditions that may be contained in any Order by the Customer or in any other
document or elsewhere.
3. VARIATION OF CONDITIONS
Any variation of these Conditions (including any addition or deletion) must be in
writing signed by the Senior Manager of the Company in order to bind the Company.
4. QUOTATIONS
(a) A Quotation will expire on the validity date specified in that Quotation and
shall not have any force or effect upon expiration.
(b) The company reserves the right to withdraw any quotation at any time.
(c) A Quotation shall only be binding on the Company if:-
(i) the Quotation is accepted in writing by an Order from the customer.
(ii) prices quoted are subject always to increments necessitated by clauses 7 (c)
and 8 (b)
5. ORDERS
(a) Orders must be placed in writing.
(b) Each Order is deemed to incorporate these Conditions in full unless dispensation
has been noted by way of a written waiver by an authorised officer of the Company.
(c) Any variation to the Order (including any addition or deletion) must be received
in writing. Cancellation or variations will only be granted upon terms satisfactory
to the Company. The Company reserves the right to recover all costs associated with
any such change.
6. CONFIRMATION OF ORDERS
No Order shall bind the Company unless:-
(a) Confirmation and order acknowledgement has taken place;
(b) The Order is subject to and consistent with the Terms; and
(c) Any variations to an Order by the confirmation are accepted by the Customer
7. PRICE
(a) Where an Order is placed for particular products and/or services specified in
a Quotation prior to the expiry of that Quotation, unless otherwise expressly agreed
by the Company and Customer in writing prior to delivery, the price of those products
and/or services shall be the price stated in the Quotation in respect of those Products.
(b) Where an Order is placed for products and/or services which are not the subject
of a valid Quotation or after the relevant Quotation has expired, and that Order
is accepted by the Company, the price of those Products shall be the then current
price charged by the Company as at the date of that Order.
(c) The Company may further amend the price of the products and/or services by adding
any of the following costs to invoices:
· Subcontracting charges (Clause 17)
· Statutory charges, GST and other taxes, duties or imposts levied in respect of
the products or services
· Transport, freight, handling and delivery
· Exchange rate variations
· Insurance and any other ancillary costs
· Overtime rates and penalties
8. DELIVERY
(a) Unless the Company and the Customer agree that paragraph 8(b) is to apply, the
Customer is responsible for and shall bear the cost of the collection of all Goods
from the relevant premises specified by the Company in the Confirmation and must
collect or arrange the collection of such Goods within 24 hours of notification
by the Company that such Goods are ready for collection. If such Goods are not collected
within that 24 hour period, the Customer shall pay all charges and all costs and
expenses relating to the storage thereof.
(b) If the Company and the Customer agree that this paragraph 8(b) is to apply,
the Company will arrange for the delivery of the relevant Goods to the relevant
premises specified by the Customer in the Order and, unless otherwise agreed in
writing between the Company and the Customer, the Company shall charge to the Customer
the applicable costs stated in paragraph 7(c). The manner of delivery shall be in
the Company's absolute discretion unless a specific manner of delivery has been
agreed in writing between the Customer and the Company.
(c) Delivery of Goods will be deemed to have been effected by the Company upon the
Company placing the Goods at the disposal of the Customer at the premises specified
in the Confirmation in accordance with paragraph 8(a) or upon collection of the
Products by a carrier pursuant to paragraph 8(b) (as the case requires).
(d) The Company reserves the right to deliver Goods the subject of an Order by instalments,
whether in accordance with paragraph 8(a) or 8(b), as the case may require. This
would not, however, preclude the customer from the obligation to pay the whole of
its debt.
(e) If a delivery date or date for the completion of services is specified in a
Confirmation, the Company shall not be liable for any failure to meet such date
resulting from any cause beyond its reasonable control, including, without limiting
the generality of the foregoing: lockouts; strikes; fire; riots; tempest; accidents
to machinery; war; non-availability of materials; or default, non-supply or late
supply by any supplier or sub-contractor to the Company.
9. LIMITATIONS OF LIABILITY
(a) If a delivery date or date for completion of services is specified in a Confirmation
and the Company fails to deliver the goods or complete the services by that date
or at all, for any reason whatsoever:
(i) the Company will not be liable for consequential loss or damage; and
(ii) the Customer will not be entitled to rescind or repudiate the contract comprising
the Order and the Confirmation.
(b) The Customer shall indemnify the Company from and against all actions, suits,
claims, proceedings, accounts, demands, judgments, costs and expenses (including
legal costs and expenses) and any liability whatsoever which the Company may suffer
or incur directly or indirectly in relation to any damage to property or any death
of or injury to any person occurring in connection with the Company's performance
of Services at the Customer's premises or any other premises specified by the Customer.
(c) If the Company supplies any Products or Services to any specifications or other
requirements of a Customer, the Customer shall indemnify the Company from and against
all actions, suits, claims, proceedings, accounts, demands, judgments, costs and
expenses (including legal costs and expenses) and any liability whatsoever which
the Company may suffer or incur directly or indirectly in relation to the Company's
compliance with any such specifications or other requirements of that Customer,
including but not limited to:
(i) any infringement of the industrial or intellectual property rights of any third
party; and
(ii) any defect in or unsuitability of such Products or the Customer's Products.
(d) Except as expressly provided in paragraph 8(e) or the Warranty, all terms, conditions,
warranties, undertakings, inducements and representations, whether express or implied,
statutory or otherwise relating in any way to any Products or Services supplied
by the Company are excluded. Without limiting the generality of the preceding sentence,
the Company will not be under any other liability in respect of any loss or damage
(including consequential loss or damage) however caused (whether by negligence or
otherwise) which may be suffered or incurred or which may arise directly or indirectly
in respect of any Products or Services supplied by the Company.
(e) Where any applicable legislation implies any term, condition or warranty into
the relationship between the Company and the Customer or into these Conditions,
or otherwise gives the Customer a particular remedy against the Company, and that
legislation or any legislation avoids or prohibits provisions excluding or modifying
the application of or exercise of, or liability under such term, condition, warranty
or remedy, then that term, condition, warranty or remedy shall be deemed to be included
in these Conditions, or, as the case may be, apply to that relationship. However,
liability for any breach of such term, condition or warranty or under such remedy
shall be limited, at the Company's option, in any one or more of the ways permitted
by that legislation including, where so permitted:
(i) if the breach relates to any goods to:
a. the replacement of those goods or the supply of equivalent products;
b. the repair of those goods;
c. the payment of the cost of replacing those goods or acquiring equivalent goods;
or
d. the payment of the cost of having those goods repaired; and
(ii) if the breach relates to any services to:
a. the supplying of those services again; and
b. the payment of the cost of having those services supplied again.
(f) The Company assumes no liability for any technical advice or assistance given
or the results obtained there from, all such advice being given and accepted at
the Customer's risk.
(g) The Company is not responsible for equipment and structures beyond our supply.
It remains the sole responsibility of the Customer to ensure that any Goods that
are connected and/or reliant on any building structures that these are adequate
and suitable for the loads being applied.
10. PAYMENT
(a) Subject to paragraph 10(b), the Customer shall make full payment for the Goods
and/or Services within thirty (30) days of the date appearing on the invoice. Interest
shall accrue on the amount of any overdue payment at a rate equal to the current
bank overdraft rates, calculated from the date payment was due.
(b) Notwithstanding paragraphs 10(a), if in the Company's absolute discretion, the
Customer's financial status is or becomes unsatisfactory to the Company, the Company
reserves the right to require payment of the price for goods and/or Services in
full in cash in advance or security for the price in respect of all future deliveries
or services. In the advent that the Company finds it necessary to deliver the goods
and/or services by instalments does not imply that payment for those goods and/or
services can be made by instalments.
11. DEFAULT
(a) In the event that the Customer fails to make any payment when due, then, without
prejudice to the application of any other provision hereof or to any other remedy
provided to the Company hereunder or otherwise,
(i) interest shall accrue on the amount of the overdue payment at a rate equal to
the current bank overdraft rates, calculated from the date payment was due, and
all payments which are not yet due shall immediately become due and payable by the
Customer; and
(ii) any collection expenses incurred by the Company in attempting to recover or
recovery of such overdue amount shall become payable by the customer.
(b) If any of the following events apply to a Customer, the Company shall have the
right to withhold further deliveries to that Customer and to cancel all outstanding
Orders placed by that Customer and retain any payments already made, in addition
to any right of action or remedy on the part of the Company for the recovery of
any moneys due or for any antecedent breach by that Customer:
(i) the Customer is in default of payment due for more that 7 days;
(ii) the Customer is or becomes an externally administered body corporate (within
the meaning of the Corporations Law);
(iii) a controller (within the meaning of the Corporations Law) enters into possession
or takes control of all or any of the Customer's assets or undertaking; or
(iv) the Customer is or becomes insolvent (within the meaning of the Corporations
Law) or ceases or threatens to cease to carry on its business.
12. PROPERTY AND RISK
(a) Products shall be at the Customer's risk immediately upon delivery by the Company
in accordance with clause 8.
(b) Property in Products supplied by the Company shall not pass until:
(i) the Customer has paid in full for the Products; or
(ii) the Products are incorporated into another product by the Customer or sold
by the Customer in the ordinary course of business.
(c) After delivery of the Products to the Customer but before property passes to
the Customer:
(i) the relationship between the parties shall be fiduciary and the Customer shall
hold the Products as bailee;
(ii) the Customer shall, at its expense, store and clearly identify such Products
as the property of the Company;
(iii) the Customer shall, at its expense, take all necessary precautions to keep
the Products safe and free from damage by fire, water, accident, vermin or reckless
or malicious damage;
(iv) the Customer shall give the Company, its agents and servants, leave and licence,
without the necessity of giving any notice, to enter at any time on and into any
premises occupied by the Customer, using reasonable force, if necessary, to inspect,
search for, or remove the Products; and
(v) if the Customer sells the Products, or any other Products in which the Products
have been incorporated, the Customer shall hold so much of the proceeds of such
sale as equals the unpaid price payable to the Company in a separate account on
trust for the Company.
(d) If the Customer fails to make full payment for any Products supplied by the
Company, the Company shall be entitled to possession of those Products and may recover
and sell the same. The Customer shall place those Products at the disposal of the
Company, which shall be entitled to enter upon any premises of the Customer and
remove those Products. If such Products have been incorporated into another product,
the Company shall be entitled to sell such product and to retain so much of the
proceeds of sale as equals the unpaid price payable to the Company.
(e) If, for any reason whatsoever, products owned by the Customer are in the custody
of the Company, the Customer shall effect such policy or policies of insurance as
are necessary to ensure full cover for any damage or loss to such products whilst
in the custody of the Company.
(f) The Company shall have lien over any products owned by the Customer which are
in its custody for the purpose of repairs.
13. PROVISION OF SERVICES AT THE CUSTOMER'S PREMISES
Unless the Company carries out the Services which are the subject of an Order at
the Company's premises, the Customer shall, at its cost, provide all equipment and
utility services (such as but not limited to power, water, lighting and telephone
services) necessary and convenient for the Company to carry out those Services.
14. WARRANTY
The Company warrants any defect in Goods to a maximum period of twelve (12) months
from date of despatch. The stated period covers single-shift operations and as such
will reduce accordingly where the product is used in multi-shift operations. Such
warranty is limited by the conditions of the original equipment manufacturer and
where such conditions differ to the Company's stated warranty then back-to-back
conditions will apply. Warranty is limited to the repair or replacement of faulty
parts and no liability will be accepted for any loss or costs incurred by the Customer
due to any failure of the Goods. The Company, in addition, may elect to provide
warranty in the form of labour for the restoration of the Goods however such an
offer would be at the full discretion of the Company and would as such never include
travel, hire, expenses, and the like.
Warranty will only be granted where the Customer has used the Goods in accordance
with the manufacturer's recommendations and where the Customer has notified us in
writing of the onset of the Goods decline in performance. Goods used outside the
purpose for which they are designed and where the Customer has designated the parameters
of their special use will not be covered by warranty. Warranty will not be provided
if there is evidence that the Goods have been misused or overloaded and where the
lack of appropriate maintenance has contributed to the failure of the Goods.
15. QUANTITY
The quantities of Products listed on the Company's delivery docket shall be conclusive
evidence of the quantities delivered and received by the Customer unless the Company
is advised of any purported shortfall, in writing, by the Customer within 7 days
of delivery of the Products.
16. DESCRIPTIONS AND SPECIFICATIONS
The descriptions, illustrations and other material contained in any catalogue, price
list, brochure, leaflet or other material provided by or on behalf of the Company
have been given by way of identification only and shall not form any part of these
Conditions. All Products and Services supplied by the Company shall be in conformity
with the Company's standard commercial and technical specifications, subject to
the Company's right to incorporate such minor modifications thereto as it thinks
fit or any modifications of whatever nature necessary to comply with any relevant
law.
17. ASSIGNMENT
The Customer may not assign the contract comprising the Order and the Confirmation
without the written consent of the Company.
18. WAIVER
No waiver by the Company of any breach of these Conditions shall be construed as
a waiver of any subsequent breach of these Conditions unless the same be expressed
in writing and signed by a Director of the Company.
19. NOTICES
All notices shall be deemed to be given on the date of the addressee's receipt thereof.
All notices or communications to the Company or to the Customer shall be directed
in writing and sent by mail, telegraph, telex, facsimile or cable to the address
indicated in the Order of Confirmation, as the case may require.
20. CHOICE OF LAW
In the event of a dispute the matter is to be resolved in Queensland in accordance
with and governed by the laws in force in Queensland.
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Back to top | © Copyright 2004 Vital Machines. ABN 34 108
230 039
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