Terms & Conditions
TERMS AND CONDITIONS OF SALE
1. General - any order placed by a purchaser is deemed to be an order incorporating these terms and conditions notwithstanding any inconsistencies which may be introduced in the purchaser’s order or acceptance unless expressly agreed by “Machin & Ewen Pty. Ltd” (the “Company”) in writing.
2. Quotations and Prices - the prices quoted are based on the company’s estimated cost of production manufacture or supply at the time of quotation and are subject of alteration without notice to the purchaser due to any increase in the Company’s cost between the date of quotation and the date or dates of delivery. Unless otherwise expressly agreed by the Company in writing all goods will be charged for at the prices ruling at the date or dates of delivery. All prices quoted are exclusive of sales tax which, if applicable, will be for the purchaser’s account.
All prices are expressed in Australian dollars and unless expressly stated otherwise prices quoted are for delivery free on road vehicles or FOT ex. the company’s works.
A quotation is not an offer by the Company to sell and may be withdrawn without notice; any order given in respect of a quotation is not binding on the Company until accepted by the Company in writing. Telephone orders should be confirmed in writing.
3. Orders - orders accepted by the Company may not be cancelled or altered in whole or in part without the company’s written consent.
The Company may decline by written notice to the purchaser, any order in whole or in part, at any time prior to delivery of the goods or performance of the services in which case the Company will be under no obligation in respect of the order.
4. Terms of Payment - net cash 30 days from the date of invoice, but the Company reserves the right to vary the terms of payment and to require payment in cash in full prior to delivery should be creditworthiness of the purchaser at any time become in the Company’s opinion unsatisfactory.
5. Claims - any claim by the purchaser for short or wrongful delivery of the goods MUST BE NOTIFIED TO THE COMPANY IN WRITING WITHIN 14 DAYS after delivery of the goods to the purchaser and any claim which the purchaser does not notify within the time aforesaid (time being of the essence) shall be deemed to have been absolutely waived.
6. Description - any description of the goods is approximate only and is given by the way of identification only and the use of such description shall not constitute the contract a sale by description. The purchaser cannot claim against the Company for any deviation.
7. Implied Terms - it is hereby acknowledged by the Company that, under applicable State, Territory and Commonwealth law, certain conditions and warranties may be implied in the contract between the Company and the purchaser and rights and remedies conferred upon the purchaser and other parties in relation to goods or services which cannot be excluded, restricted or modified by agreement (”Non-excludable Rights”). The limitations below are subject to these Non-excludable Rights.
Subject to the above the Company disclaims all conditions and warranties expressed or implied, and the rights and remedies conferred upon the purchaser, or other parties by statute the common law equity trade custom or usage or otherwise. howsoever and all such conditions and warranties and all such rights and remedies are hereby expressly excluded other than any Non-excludable Rights. Where so permitted the liability of the Company for a breach of a Non-excludable Right is limited, at the Company’s option, in the case of goods, to the replacement or repair of the goods or the supply equivalent goods or the cost of replacing or repairing the goods or of acquiring equivalent goods and in the case of services, to the supplying of the services again or the payment of the cost of having the services supplied again.
8. Indirect Loss - accordingly, subject to clause 7 in no event shall the Company be liable (whether before or after discharged of the contract or otherwise) for any loss or damage to the purchaser as user arising from or caused or contributed to by negligence of the Company, its servants or agents, nor shall the Company be liable for special incidental indirect or consequential loss or damage suffered by the purchaser as user as a result of a breach by the Company of its obligations or otherwise including but not limited to economic loss, loss of profits or revenue or costs arising from such breach.
9. Indemnity - subject to clause 7, the purchaser shall indemnify and keep indemnified and hold the Company harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Company, and from and against all action, proceedings, claims or demands made against the Company, arising from any of the following:
(a) as a result of the purchaser’s failure to:
(i) ensure that any safety markings on the goods are adequately displayed;
(ii) comply with any legislations as to the labelling or marking of goods;
(iii) take any other reasonable precautions either to bring to the attention of any potential users of the goods any dangers associated with goods, or to detect any matters in relation to which the Company may become liable, including without limitation, liability under part VA of the Trade Practices Act; or
(iv) otherwise comply with any laws, rules, standards or regulations applicable in relation to the goods or the use of the goods;
(b) as a result of any other negligence or breach of duty by the purchaser; or
(i) as a result of any compliance or adherence by the Company with any instructions of the purchaser in relation to the goods or their manner of fabrication.
10. Quantity - delivery of up to 5% more than the quantity specified shall constitute fulfilment of the order and any excess not exceeding the amount aforesaid shall be taken by the purchaser who shall pay for the quantity actually delivered.
11. Delivery - unless otherwise expressly agreed by the Company in writing the goods will be delivered ex-works. Any time quoted for delivery is an estimate only and the Company shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to deliver or delay in delivery arising from any circumstances of whatsoever nature including in particular but limiting the generality of the foregoing fire flood explosion strike lock-out or other industrial act of dispute or the breakdown of or accident to plant unavailability or shortage of raw materials labour power supplies or transport facilities or failure or inability to obtain licences or act of God or any order or direction of any local State or Federal Government or Government authority or instrumentality. If the Company determines that it is or may be unable to deliver within a reasonable time or at all the contract may be cancelled by the Company. In the event of cancellation the purchaser shall have no claim against the Company for any damage loss cost or expense whatsoever. The purchaser shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery.
12. Property and Risk -
(a) Property in the goods shall not pass from the Company to the purchaser until the purchaser has paid all moneys outstanding from the purchaser to the Company on any account in full. The risk of loss of or damages to the goods shall pass to the purchaser on delivery.
(b) The purchaser agrees to store the goods separately and mark them so to render them as identifiable as being or being made from or with goods which are the property of the Company.
(c) Should the goods (or any part of them) be converted into or incorporated in a new product or products (the “new products”) whether or not the admixture of any other goods or thing whatsoever and in whatever proportions is involved, the conversion or incorporation (as the case may be) shall be deemed to have been effected on behalf of the Company and the new products shall be the property of the Company. The right of the purchaser to convert or incorporate the goods in a new product or products shall automatically cease if a receiver and manager, administrator or other external controller is appointed over any of the purchaser’s assets or if a winding up order is made against or a resolution is passed for the winding up of the purchaser or any steps are taken toward the making of such an order or the passing of such a resolution or if the Company at any time revokes such right by notice to the purchaser.
(d) The purchaser shall have no right to sell or otherwise dispose of the goods or the new products until the price of the goods has been paid in full to the Company unless:
(i) the goods or the new products are sold in the ordinary course of the purchaser’s business; and
(ii) that part of the proceeds of sales of the goods and the new products as represents the price of the goods shall be paid forthwith to the Company and until such of the proceeds are so paid, they shall be held by the purchaser in trust for the Company.
The power of sale hereby conferred on the purchaser shall automatically cease if a receiver and manager, administrator or other external controller is appointed over any of the purchaser’s assets or if a winding up order is made against a resolution is passed for the winding up of the purchaser or any steps are taken towards the making of such an order or the passing of such a resolution or if the Company at any time revokes the power of sale by notice to the purchaser.
(e) Upon determination of the purchaser’s power of sale under (d) above the Company shall become entitled to possession of the goods and the new products. The purchaser shall place the goods and the new products at the disposal of the Company who shall be entitled to enter upon any premises of the purchaser and remove the goods and the new products.
(f) The purchaser grants to the Company, upon the Company giving notice to the purchaser, the right to bring proceedings in the name of the purchaser to recover moneys owing to the purchaser as a result of sales of the goods or the new products. Any amounts recovered as a result of such proceedings shall be retained by the Company in payment of amounts owing for goods supplied by the Company to the purchaser.
(g) If any provision of this Clause creates or constitutes a charge or other security right requiring registration under the provisions of any legislation, such provision shall be severed from this Clause.
13. Performance and Representations - the purchaser acknowledges that neither the Company nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the goods for any particular purpose or any other matter. In particular, the purchaser acknowledges that it does not rely on the skill and judgement of the Company in supplying goods which are fit for a particular purpose, and that it will ensure that any goods supplied to it by the Company are in accordance with its order.
14. Quality Control - unless expressly agreed to the contrary, the Company will manufacture in accordance with accepted tolerance standards.
15. Inspection - any inspection or test agreed upon prior to acceptance of the goods by the purchaser must, unless otherwise agreed, be carried out at the Company’s works. In the event of any specialised inspection being required or special test prescribed by the purchaser, the cost shall be to the purchaser’s account. In the case of any such inspection, the Company accepts no responsibility for any defects in the goods or services which are identified once the goods in question have left the Company’s site.
16. Installments - The Company reserves the right to deliver by installments and each installments shall be deemed to be sold under a separate contract. Failure of the Company to deliver any installment shall not entitle the purchaser to cancel the balance of the order. In the event of the purchaser making default in respect of any installment, the Company may elect to treat the default as a breach of contract relating to each other installment.
17. Default in Payment - the Company will treat any default by the purchaser in payment of any moneys due to the Company as a breach of these terms and conditions. The Company will thereupon cease work and supply on the relevant order and all other orders placed by the purchaser and hold all the purchaser’s work until the due payment or payments are made. Recurring payment default will lead to the purchaser’s account with the Company being closed and any further order placed by the purchaser will only be processed when prepaid for by a bank cheque.
18. Waiver - failure by the Company to insist upon strict performance of any term warranty or condition of the contract shall not be deemed as a waiver thereof or of any rights the Company may have and no express waiver shall be deemed a waiver of any subsequent breach of any term warranty or condition.
19. Purchaser’s Acknowledgment - the purchaser acknowledges that the goods are not of a kind ordinarily acquired for private use or consumption and that the purchaser is acquiring the goods for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods.
20. Intellectual Property Rights (patents, registered designs, trade marks, copyright, confidential information and the like) - the purchaser warrants that any design or instruction furnished to the Company shall not be such as will cause the Company to infringe any intellectual property rights in the execution of the purchaser’s order and the purchaser agrees to indemnify the Company against any infringement or unauthorised use of intellectual property rights arising out of the manufacture or use of the goods and it is specifically agreed that the sale and purchase of the goods does not confer on the purchaser any license or rights under any intellectual property rights which is the property of the Company.
The Company shall in no way whatsoever be responsible for the purchaser’s tools, dies, jigs, goods and property which shall be received and stored by the Company at the purchaser’s risk.
The Company shall not in any manner whatsoever be responsible for conformity of patents to drawings unless such patents are made by the Company.
The purchaser will be charged will the cost of rejects or re-work due to patent inaccuracies.
The Company shall be under no obligation to disclose the methods or techniques used in production.
21. Subcontracting - the Company reserves the right to subcontract the production manufacture or supply of the whole or any part of the goods or of any materials or services to be supplied.
22. Notices - any notice to be given by the purchaser to the Company shall be sent to the Company’s address. No notice shall be deemed to have been given until it is actually received at such address.
23. Severance - any provision of these terms which is invalid or unenforceable in any jurisdiction is to be read down, if possible, so as to be valid and enforceable. The read down provision will apply only in the relevant jurisdiction. If the provision cannot be read down, and it can be severed to the extent of the invalidity or unenforceability, then it will be severed. The remaining provisions of these terms, and the validity or enforceability of that provision in any other jurisdiction, will not be affected.
24. Governing Law - contracts shall be governed by and construed in accordance with the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeals from these courts.