TERMS AND CONDITIONS OF SALE
1. Definition
In these terms and conditions
(a) 'Buyer' means the entity purchasing
the goods upon these terms and conditions.
(b) 'Cost of Delivery' means the cost of transportation of the goods to
the place of
delivery.
(c) 'Seller' means ASN
Switchgear Pty Ltd ABN 87 004 867 494.
2. Binding Terms and
Conditions
The only terms which are binding on the
Seller are:
(a) those set out in these terms and
conditions or otherwise agreed in writing by the Seller; and
(b) those if any that are imposed by law
and which cannot be excluded.
3. Price
(1) Neither the price list of the Seller nor any quotation issued by
the Seller to the Buyer is an offer
to
sell but is an invitation to treat only and the Seller reserves the
right to accept or reject in its absolute
discretion any orders which may be received by it.
(2) The prices shown in the price list
are subject to change without notice.
(3) The prices shown in the quotation Issued by the Seller to the Buyer
apply only to orders
placed
within 30 days after the date of the quotation and thereafter the
prices are subject to change without
notification.
(4) If the Seller accepts an order it must supply the goods at the
price shown in the price list
current
when the Seller accepts the order, unless otherwise agreed in writing.
(5) The price shown does not include GST
which must be paid by the Buyer at the prescribed rate.
4. Delivery
A delivery charge will apply to all deliveries with the exception of
back order deliveries that are part of
the original order that has
been partly fulfilled.
5. Acceptance
The Buyer must inspect the goods immediately upon delivery and must
within 7days after the date
of
the inspection give written notice to the Seller, with particulars of
any claim that the goods are not
in
accordance with the contract. If the
Buyer fails
to give that notice, then to the extent permitted by
the
statute the goods are
deemed to have been accepted by the Buyer and the Buyer must pay for
the
goods in accordance with the
provisions of these terms and conditions.
6. Payment
(1) Payment for goods and GST must be tendered no later than the
expiration of the calendar
month
following the month of the sale.
(2) Payment is deemed to be made:
(a) if cash is tendered - on the date it is tendered; and
(b) if a cheque (bank or otherwise) or other negotiable instrument is
tendered - on the date
upon
which the cheque or other negotiable instrument is negotiated and
cleared by the
Seller's
bankers.
(3) Time is of the essence in respect of the Buyers obligation to make
payment for the goods sold by
the
Seller to the Buyer.
(4) If the Buyer defaults in making payment to the Seller in accordance
with these terms and conditions
the Seller may in its absolute discretion:
(a) Charge the Buyer interest calculated on the portion of the Buyer's
account overdue at the rate of
2% per month from the date on which the default arose; and
(b) require the Buyer to reimburse the Seller for all
collection
costs including legal costs incurred by
the Seller calculated on solicitor and client basis as a consequence of
the Seller instructing
its
solicitor to provide advice to it in connection with the default and/or
to institute such
recovery
process as the Seller in its discretion decides.
(5) Any payments tendered by the Buyer
to the Seller must be applied as follows:
(a) first as reimbursement for any collection costs incurred by the
Seller in accordance with
clause
6(4)(b);
(b) secondly, in payment of any interest charged to the Buyer in
accordance with clause 6(4)(a); and
(c) thirdly, in satisfaction or part satisfaction of the oldest portion
of the Buyers account.
7. Returns
(1) The Buyer must not return any goods
which the Buyer claims are not in accordance with the contract
(whether or not the goods are deemed to be accepted by the Buyer)
unless the Seller has first given
its written approval to their return.
(2) If the Seller has given its written
approval to the return under clause 7(1);
(a) the Seller will only give credit for the goods returned if they are
in a saleable condition; and
(b) the Seller may charge equivalent to 10% of the price of the goods
returned, unless the Buyer is
a "consumer" for the purpose of the Trade Practices Act 1974 or similar
State or
Territory
legislation.
8. Risk and Insurance
Goods supplied by the Seller to the
Buyer are at the Buyer's risk immediately on delivery to the Buyer
or into the Buyer's custody (whichever is the sooner). The Buyer must
insure the goods at its cost from
delivery
of the goods until they are paid for in full against such risks
as it thinks appropriate and must note the interest
of the
Seller on the policy and produce a certificate to this effect to the
Seller on request.
9. Retention of Title
(1) The Buyer acknowledges that the ownership of the goods delivered by
the Seller to the
Buyer
(the
"goods") is only transferred to the Buyer when the Buyer has paid all
sums owing to the Seller
on any account whatsoever and until that time the Seller has the right
to call for or recover
the
goods at its option (for which purpose Seller's employees or agents may
enter the Buyer's premises)
and the Buyer is obliged to deliver up the goods if so directed by the
Seller.
(2) The Buyer agrees to keep the goods in
fiduciary capacity for the Seller until such time as
the
ownership is transferred to the Buyer.
(3) Despite the foregoing the Buyer may sell the
goods to a third party in the ordinary course of
business.
10. Insolvency of Buyer
(1) A breach of contract is deemed to occur if:
(a) an application or order is made to or by a court or a resolution is
passed for the winding up
or
bankruptcy of the
Buyer or notice of intention to propose such a resolution is given; or
(b) a controller (as defined in section 9 of the Corporations Law) or
an administrator under Part 5.3A
of the Corporations Law or a trustee in bankruptcy is
appointed
in respect of the Buyer, or
the
whole or
any part of its undertaking or property.
(2) The provisions of clause10(1) apply despite any arrangement between
the parties under which the
Seller grants the Buyer credit.
11. Exclusions of Implied
Conditions and Warranties
(1) The only conditions and warranties which are
binding on the Seller in respect of:
(a) the state, quality or condition of the goods supplied by it to the
Buyer, and/or
(b)
advice, recommendation(s), information or services supplied by it, its
employees, servants
or agents to the Buyer regarding the goods, their use and
application:
are those imposed and required to be binding by statue (including the
Trade Practices Act
1974).
(2) To the extent permitted by statute the liability, if
any, of the Seller arising from the breach of the
conditions or warranties referred to in clause 11(1) are, at
the
Sellers option, limited
and
completely discharged:
(a) in the case of the goods, by either;
(i) the supply by the Seller of equivalent goods; or
(ii) the replacement by the Seller of the goods supplied to the Buyer;
and
(b) in the case
of advice, recommendation, information or services by supplying the
advice,
recommendation(s), information or services again.
(3) Except as provided in this clause 11 all
conditions and warranties whether express or applied by
law in respect of the state; quality or condition of the
goods
which may apart from this
clause
be binding on the Seller are excluded.
(4) The Buyer acknowledges that the Buyer does not rely and it is
unreasonable for the Buyer
to
rely on the skill or judgement of the Seller as to whether
the
goods supplied are reasonably fit
for any purpose for which they are being acquired, and that the sale is
not a sale of goods
by
description or sample.
(5) Except to the extent provided in this clause 11 the Seller has no
liability (including liability
in
negligence) to any person for:
(a) any loss or damage consequential or otherwise suffered or incurred
by that person in relation
to the goods and/or advise, recommendation(s), information or
service; and
(b) in
particular without limiting clause 11(5)(a) any loss or damage
consequential or otherwise
suffered or incurred by that person caused by or resulting
directly or indirectly from
any
failure, defect or deficiency of any kind of or in the goods
and/or advice, recommendation(s)
information or services.
12. Privacy
Where goods are supplied to the Buyer on credit the Buyer irrevocably
authorises the Seller
its
employees and agents to make such inquiries as it deems
necessary
to investigate the
credit
worthiness of the Buyer including (without limitation) making inquiries
from persons nominated as
trade referees, the bankers of the Buyer or any credit providers
(Information Sources) and
the
Buyer authorises the Information Sources to disclose to the Seller all
information concerning the
Buyer which is
within their possession and which is requested by the Seller.
13. Force Majeure
If a party is prevented from or delayed in complying with an obligation
(other than to pay money)
by an event beyond its reasonable control, including terrorist attack and/or sabtage, performance
by it
of
that obligation is
suspended during the time, but only to
the extent that compliance is prevented
or delayed.
14. Severability
If anything in these terms and
conditions is unenforceable, illegal or void than it is severed and the
rest of these terms and
conditions remain in force.
15. Waiver
A party's failure or delay to
exercise a power or right does not operate as a waiver of that power or
right, and the exercise of a power or right does not preclude
either its exercise in the future or the
exercise of any other power or right. A waiver is not
effective
unless it is in writing and is effective
only in respect of the specific instance to which it relates
and
for the specific purpose for which it
is given.
16. Notices
(1) A notice or other communication ("Notice") connected with these
terms and conditions has no
legal effect unless it is in writing and;
(a) delivered by hand at the address of the addressee set out in these
terms and conditions or
subsequently notified;
(b) sent by post, postage prepaid to that address; or
(c) sent by facsimile to the facsimile number of the addressee.
(2) A notice is deemed given and
received:
(a) if delivered, upon delivery;
(b) if sent post, on the 2nd Business Day (at the address to which it
is posted) after posting; or
(c) if sent by facsimile before 4p.m. on a Business Day at the place of
receipt, on the day it is
sent and otherwise on the next Business Day at the place of receipt.
(3) Despite clause 16(3)(c) a facsimile
is not deemed given or received unless at the conclusion of
the transmission the sender's facsimile machine issues a
transmission report which
indicates
that the relevant number of pages comprised in the Notice have been
sent.
(4) For the purpose of this clause 16 "Business Day" means a
day
that is not a Saturday, Sunday
or any other day which is a public holiday or a bank holiday in the
place where an act is to be
performed or a payment to be made.
17. Governing Law and
Jurisdictions
The Law of the State of
Victoria governs these terms and conditions.
Dated: 2 August 2010
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