1 GENERAL
These terms and conditions of sale (“Conditions”) govern
all contracts of sale (“Contract”), quotations, invoices
and purchase orders between Clearguard Pty Ltd (“Company”)
and a buyer of goods or services (“Purchaser”) unless
added to or varied expressly in writing and signed on behalf of
the Company. All purchase orders must be signed and accepted by
the Company. By placing a purchase order a Purchaser shall be
taken to have read and accepted these Conditions.
2 QUOTATIONS
All quotations are valid for 30 days from date of quotation and
subject to confirmation before acceptance, unless otherwise
stated.
3 ILLUSTRATIONS
Photographs, illustrations or advertising matter supplied
represent generally the specified goods and services, but shall
not be taken as necessarily representing the goods supplied to
the Purchaser by the Company (“Goods”) and services
supplied to the Purchaser by the Company (“Services”),
and shall not form part of the Contract.
4 VARIATION IN RATES
The quotation is based on rates of freight, insurance, customs
duties, currency exchange, shipping expenses and cartage which
rule on the date it is made. Any alterations, either before
acceptance or during the currency of the Contract, shall be to
the Purchaser’s account, unless otherwise agreed in writing.
5 TERMS OF PAYMENT AND OWNERSHIP OF GOODS
5.1 Prices quoted or announced by the Company are strictly net
unless otherwise set out in the quotations and subject to the
provisions of clause 5.15 payment shall be made by the
Purchaser:
(a) for Goods within 30 days from the date of invoice (subject
to credit approval prior to supply);
(b) for Services within 15 days from the date of invoice
(subject to credit approval prior to carrying out the Service).
5.2 The Purchaser shall not be entitled to deduct from any
invoice any monies by way of retention or otherwise.
5.3 The Purchaser must pay for the Goods or Services
notwithstanding minor or inconsequential defects or deviations
from the quotation.
5.4 The Company shall be entitled to interest on all sums
payable by the Purchaser which shall accrue and be calculated at
the rate of 12% per annum on a daily basis from the due date for
payment under clause 5.1 to the date on which the sum is
paid in full.
5.5 Goods shall remain the sole and absolute property of the
Company as legal and equitable owner until the full price of
those Goods has been paid to the Company, as well as all other
payments due to the Company. Cheques or other negotiable
securities given by the Purchaser to the Company shall not be
deemed to be payment until cleared.
5.6 Until the Goods and any other Goods and Services are paid
for in full:
(a) the Purchaser acknowledges that it is in possession of the
Goods as bailee for the Company;
(b) the Purchaser shall store the Goods separately from its own
Goods or those of any other person, in a manner which renders
them clearly identifiable as the Goods of the Company;
(c) the Company may (without prejudice to any of its other
rights and without liability to the Purchaser or any other third
party for any damages, costs or other liabilities), without
previous notice retake and resume possession of Goods which
remain the property of the Company and by its servants and
agents may enter upon the Purchaser’s premises or any other
place where the Goods may be for that purpose, upon the
occurrence of one of the following events:
(i)
(where the Purchaser is a corporation) any step is taken to
wind up or dissolve the Purchaser, to appoint an administrator,
liquidator or similar, or to enforce any encumbrance over any of
Purchaser’s undertaking or property;
(ii)
(where the Purchaser is a natural person), the Purchase
becomes insolvent or bankrupt or commits an act of bankruptcy or
makes an assignment for the benefit of a creditor; or
(iii)
the Purchaser fails to pay the whole or any part of the
purchase price of transport, Delivery or other charges for the
Goods or any other Goods or Service when due; or
(iv)
the Purchaser parts with possession of the Goods otherwise
than by way of sale to a customer in the ordinary course of the
Purchaser’s business; or
(v)
any other items or Conditions of the contract between the
Company and the Purchaser are breached by the Purchaser;
(d) for the purposes of clause 5.6(c) the Purchaser
shall ensure that the Company has access to the premises on
which the Goods are held during business hours and authorises
the Company and the Company’s employees and agents to enter upon
the premises or to exercise any other of the Purchaser’s right
of entry for that purpose.
5.7 Subject to these Conditions, the Purchaser is authorised by
the Company to resell the Goods on the express condition that
the Purchaser does so as bailee and agent of the Company
(providing however that the Purchaser shall not hold itself out
as such) and the entire proceeds of the sale are held on trust
for the Company and are not mingled with other monies or paid
into an overdrawn bank account and shall be identified at all
times as the Company’s money.
5.8 The Purchaser is authorised by the Company to process or
incorporate the Goods with any other goods or property on the
express conditions that:
(a)
the product of such process or incorporation shall be
stored separately and marked so as to be identified as being
made from or with the Goods the property of the Company;
(b) subject to sub-clause 5.8(c), the Company shall have
legal and equitable ownership of the product of such process or
incorporation;
(c)
where the Goods have been incorporated with property owned
by another person and the Purchaser has entered into an
agreement with the other person in terms of equivalent effect to
sub-clause 5.8(b) then ownership of the products of that
incorporation shall be held in common with that person or those
persons.
5.9 Purchaser’s Risk
(a) The Goods are at the Purchaser’s risk from:
(i)
the first actual delivery of the Goods or Services by the
Company to the Purchaser or any agent, employee or
representative of the Purchaser (“Delivery”); or
(ii)
from notification by the Company to the Purchaser that the
Goods are available for collection,
and in any case despite any subsequent return or
retaking of possession by the Company.
(b) Without limiting the generality of sub-clause 5.9(a),
whether or not risk has passed, the Company is under no
liability in respect of any damage caused to the Goods during
the course of transit except where the Contract is to Deliver to
site.
(c) Until ownership in the Goods has passed to the Purchaser,
the Purchaser shall, at its sole expense, keep the Goods in the
same condition as that in which they were Delivered and make
good any damage or deterioration.
Subject to any express provision in these Conditions or in the
Contract to the contrary and to the full extent permitted by
law, where the Contract does not constitute a supply of Goods or
Services to a consumer as defined in the Trade Practices Act
1974 (Cth), the Fair Trading Act 1987 (WA) or analogous
legislation in any other jurisdiction:
(a)
the Company gives no condition, warranty or undertaking of
any kind as to:
(i)
the condition, quality or safety of the Goods;
(ii)
the suitability or fitness for the ordinary or any special
use or purpose of the Goods;
(iii)
the Services;
(b)
the description of the Goods or Services in the quotation,
the purchase order or invoice does not import any condition or
warranty on the part of the Company;
(c)
all conditions, warranties or liabilities (including
liability as to negligence) expressed or implied, whether
arising by virtue of any statute or otherwise, relating to the
Goods or Services are negated and excluded;
(d)
the Purchaser accepts full responsibility for ensuring that
the condition and quality of the Goods are suitable for the
purposes of the Purchaser; and
(e)
where Goods are installed in accordance with instructions
of the Company by the Purchaser, their servants or agents, the
Purchaser accepts full liability for incorrect installation of
the Good and the burden of proving correct installation will be
on the Purchaser.
5.11
Company not liable for unsuitable goods
To the full extent permitted by law:
(a)
the Purchaser declares that the Purchaser is relying on the
Purchaser's own skill and judgment in selecting the Goods and
the suitability of those Goods for the Purchaser’s purposes; and
(b)
the Company is under no liability for any unsuitability for
any purpose of the Goods (or any goods supplied with the Goods)
irrespective of any knowledge which the Company may possess as
to the purpose for which the Goods are required.
(a)
Subject to clause 9 and to any non-excludable
warranties that may be implied by law, the Company is under no
liability for any defect (including any defect caused by the
loading of the Goods) in, or deterioration or failure of, the
Goods (or any goods supplied with the Goods) whether due to
design, workmanship or materials or to any cause whatsoever
unless the defect is due to the wilful default of the Company.
(b)
The Company is under no liability for any failure of the
Goods to correspond with any description (including without
limitation, any description relating to quantity, dimensions,
weight, place of shipment or other statements relating to
transport of the Goods) and all conditions, warranties or other
terms whether express or implied statutory or otherwise
inconsistent with these Conditions are hereby expressly
excluded.
The Purchaser acknowledges that no statement, recommendation, advice or
representation given or made by the Company to the Purchaser as
to any matter relating to the Goods has in any way induced the
Purchaser to enter into the Contract unless stated in these
Conditions or the Contract.
In the case of any shortfall in the quantity of Goods delivered
from those stated in the invoice, the Purchaser:
(a)
has no right to reject the Goods or to claim for damages
for breach of Contract; and
(b)
is only obliged to pay at the Contract rate for the
quantity of Goods Delivered.
5.15
Goods and Services Tax
(a)
The expression “GST”, “input tax credit” , “recipient” and
“tax invoice” have the meanings given to those expressions in
the A New Tax System (Goods and Services) Act 1999. Unless
otherwise expressly stated, all prices or other sums payable or
consideration to be provided under these Conditions are
inclusive of GST.
(b)
Where the Purchaser is required to pay for or reimburse
expense or outgoing of the Company, amounts to be paid by the
Purchaser is the amount of the expense or outgoing less any
input tax credit in respect of such expense or outgoing that the
Company is entitled to.
(c)
Any invoice or claim provided by the Company under this
agreement will be accompanied by a tax invoice or other approved
document providing the Purchaser with the ability to claim an
input tax credit. The Purchaser is not required to make the
relevant payment until this requirement has been complied with.
5.16
Prolongation
Should a delay occur in the Delivery of Goods ordered to site or
to the Purchaser’s store, the Company reserves the right to
store the Goods at its premises or at a mutually acceptable
storage area and to obtain payment for the Goods as though the
Goods had been Delivered to site or to the Purchaser and further
to recover the storage and handling costs involved up to the
date that actual Delivery is effected.
5.17
Progress Payments
The Company reserves the right to request payment of progress
claims for Goods or Services, especially when Goods must be
acquired well ahead of scheduled Delivery time or when payment
in full for the Goods or Service will be delayed.
6
INSPECTION DURING MANUFACTURE
The Purchaser shall be allowed access to the Company’s premises
for the purpose of inspecting the Goods and work being carried
out in accordance with the Purchaser’s purchase order providing
that such inspection shall only be allowed with reasonable
notice and by prior arrangement with the Company at a time to
suit the Company’s convenience which will not impact the
production and Delivery schedule. The Company will allow such
inspection within 10 working days of any request by the
Purchaser.
7
CANCELLATION FEES
7.1
Should the Purchaser purport to terminate, repudiate,
suspend or otherwise cancel the Contract entered into with the
Company, then the Company shall be entitled to recover from the
Purchaser a proportion of the total purchase price equivalent to
the proportion of labour, skill, overhead expenses and materials
which in the opinion of the Company it has used or committed in
performing the Contract to the total of the labour, skill,
overhead expenses and materials that have been allowed to
complete the Contract (the “cancellation fee”).
7.2
No cancellation fee will apply if the need for cancellation
arises out of any default by the Company not caused by factors
reasonably beyond the control of the Company.
7.3
The Company’s entitlement to recover the cancellation fee
shall in no way be regarded as derogating from any other rights
or remedies the Company may have.
8
DELIVERY, COMPLETION AND INSPECTION
8.1
The quotation is for Goods on an ex-works basis unless
stated to the contrary. No Delivery made from the Company’s
works or to nominated sites shall be made outside normal working
hours unless otherwise agreed to by the Company. Delivery terms
used have the meaning defined in Incoterms 2000 except to the
extent expressly modified by these Conditions or the relevant
purchase order.
8.2
Any date of Delivery stipulated by the Company is an
estimate only and although the Company will use its best
endeavours to deliver by the date stipulated the Company will
not be liable in any way for any delay in Delivery or any
failure to deliver arising from causes beyond its reasonable
control.
8.3
The Delivery time is computed from the date of receipt by
the Company from the Purchaser of a written purchase order and
all information necessary to enable work to proceed until the
date when the Goods are ready for dispatch from the Company’s
works, although the price quoted may cover Delivery to another
specified place.
If the Purchaser is required to approve any drawings or other
information then the Delivery time is conditional upon prompt
approval by the Purchaser of such drawings or other information.
8.4
The Purchaser may reschedule the Delivery date by
consultation with the Company without penalty until such time as
production has commenced (either at the Company’s works or the
works of the Company’s supplier). Beyond this time the Company
may require compensation or progress payments for materials,
work in progress, storage and other charges. The Company will
as soon as practicable after acceptance of the Purchaser’s
purchase order request such information from the Purchaser as
may be required.
8.5
The Purchaser shall inspect the Goods on their arrival at
site and shall orally report any damage to the Company
immediately and shall give immediate notice by telephone, or
facsimile or email (followed by letter) of any matter or things
by reason whereof the Purchaser may allege that the Goods are
damaged or are not in accordance with the Goods specified in the
purchase order. The Company reserves the right on receiving
such notice to make immediate arrangements for the Goods to be
inspected for the purpose of ascertaining whether the defect or
damage is the responsibility of the Company. The intent of this
sub-clause is to cover both the Purchaser and the Company
against the supply of any incorrect Goods, Goods damaged in
transit or Goods damaged whilst in the possession of the
Purchaser. If the Purchaser shall give any such notice within
the period stipulated then, save for any matter or thing
mentioned in the notice, the Goods shall otherwise be deemed to
be in all respects in accordance with the purchase order.
9
WARRANTY
(a)
Subject to clauses
9.1(b), 9.1(c) and 9.2, the Company warrants all
Goods against any defect of work or materials for a period of
Eighteen calendar months from the date of Delivery or twelve
calendar months from the date of first use of the Goods,
whichever is the earlier.
(b)
The Company is not bound by its warranty under clause
9.1(a) unless notification of any alleged defect (specifying
the serial number of the Goods, the nature of the alleged
defect, the circumstances under which it occurred and a
description of the general operating conditions and supported by
appropriate photographic evidence) is given to the Company
within 10 business days of its discovery.
(c)
If, in the opinion of the Company, the alleged defect
constitutes a breach of this warranty and the Purchaser has
complied with all the conditions of this warranty, the Company
shall, on the Purchaser returning the Goods, carriage paid to
such place as the Company directs (and any provision in any
statute which states that a buyer is not bound to return to the
seller Goods which it may rightfully refuse to accept does not
apply) make good any such defect free of charge by repair or
replacement as the Company may determine.
(d)
Any Goods so repaired or replaced under this warranty will
be subject to the warranty during the balance of the said
warranty period only.
(e)
No claim is to be met by the Company under this warranty:
(i)
which arises out of fair wear and tear;
(ii)
which arises out of the transport of the Goods to the
Purchaser;
(iii)
which arise from the selection by the Purchaser of the
Goods for suitability or fitness for the ordinary or any special
use or purpose;
(iv)
if the Goods have been incorrectly fitted or installed,
overloaded, misused, damaged by dirt, subjected to any neglect
or abnormal conditions or involved in any accident;
(v)
if any attempt at repair, replacement or modification has been
made by any person other than a duly authorised employee or
service representative of the Company without the express
sanction of the Company; or
(vi)
if the Goods have in any way been dealt with contrary to any
instructions or recommendations issued or given by the Company.
(a)
This warranty does not extend to Goods manufactured by any
person other than the Company unless the defect results from
incorrect assembly of the Goods by the Company.
(b)
The Company is under no liability for any loss or damage
caused in any way by any such defective Goods.
(c)
So far as possible, the Company shall pass to the Purchaser
the benefit of any manufacturer's or supplier's warranty
relating to such Goods (but so that nothing requires the Company
to commence any proceedings against any manufacturer or supplier
of such Goods or to incur any material expense in connection
with any claim by the Purchaser).
10
CONSEQUENTIAL DAMAGES
In no event is the Company liable for consequential, special,
punitive or indirect damages. The Purchaser indemnifies the
Company against any claim of whatever nature in connection with
the Goods by any third party.
The Purchaser shall not alter, remove or in any way tamper with any of
the trade or other marks or numbers of the Company attached to
or placed upon the Goods.
(a)
If any claim is made or action brought or threatened in
respect of any infringement of patents, trade marks, trade
names, registered designs or any other industrial property
rights in respect of the Goods, the Purchaser shall not make any
admissions but shall immediately notify the Company of the
claim.
(b)
The Company shall conduct all negotiations and take all
proceedings the Company considers to dispute the claim or action
in the Company's name and the name of the Purchaser.
(c)
The conduct of all proceedings and negotiations is
completely in the discretion of the Company and the Purchaser
shall execute such documents, do all things and render such
assistance to the Company as the Company considers necessary for
the Company to properly deal with the claim or action.
11.3
Export of Goods
The Purchaser must not export the goods from the jurisdiction into
which they are Delivered without the express written consent of
the Company.
12
REVERSE ENGINEERING
The Purchaser will not reverse engineer or otherwise attempt to
copy the Goods.
13
MISCELLANEOUS
The Contract and the rights and duties of the parties shall be
governed by the laws of the State of Western Australia.
14
DISPUTES
If any dispute shall arise in connection with the Contract which
cannot be amicably settled between the Purchaser and the
Company, either party may give written notice of the existence
of such dispute and same shall be referred to the arbitration of
a person to be mutually agreed upon, or failing agreement, of
some person appointed by the President of the Institution of
Engineers, Australia. The award of such arbitrator shall be
final and finding.
