In these conditions:-
- “Seller” means Firetail DAQ ABN 69 756 7 45 869 of 13 Karri Loop, Margaret River, Western Australia, 6285 which is the seller of the goods.
- “Buyer” means the buyer of the goods specified in the seller’s quotation, or in the buyer’s order for the goods.
- “Goods” means the products and, if any, services specified in the buyer’s orders or seller’s order acknowledgment from time to time.
- Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have such effect any condition, warranty, guarantee, right or remedy implied by law and which by law can not be excluded, restricted or modified.
These conditions prevail over all conditions of the buyer’s order to the extent of any inconsistency and shall not be waived without written consent of the seller.
- Terms of Sale
The goods, products or services sold by the seller are sold on these terms and conditions.
- Seller’s Quotations
Unless previously withdrawn, seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, for 30 days only after its date. The seller reserves the right to refuse any order based on a quotation within 7 days after receipt of the order.
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 for such shortage is not lodged with the seller within 7 days from the date of receipt of goods by the buyer.
- Specifications and drawings etc
- All specifications, drawings and particulars of weights and dimensions submitted to the buyer 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.
- Except as per clause 13.1 herein, 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.
Any performance figures given by the seller are estimates only. The seller is under no liability for damages for failure of goods to attain such performance unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised applicable tolerances.
- Repair Facilities and parts
The buyer acknowledges that that the seller does not promise or represent that facilities for repair of the goods, or that parts for the goods are or will be available.
- Delivery times made known to the buyer are estimates only. The seller is not liable for late or non delivery.
- The seller is not liable for any loss, damage or delay occasioned to the buyer or its customers arising from late, partial or non delivery of goods
- The seller may at its option deliver the goods to the buyer in any number of instalments unless there is an agreement in writing between the parties to the effect that no partial deliveries will be made.
- If the seller delivers any of the good by instalments and any one of those instalments is defective it is not a repudiation of the contract of sale formed by these conditions.
11. Passing of Risk
Risk in the goods passes to the buyer upon the earlier of;
- Actual or constructive delivery of the goods to the buyer; or
- Collection of the goods from the seller by the buyer, his agent carrier or courier.
12. Loss or damage in transit
- The seller is not responsible to the buyer or any person claiming through the buyer for any loss or damages to goods in transit caused by any event of any kind by any person.
- The Seller will provide the buyer with such assistance as necessary to press claims on carriers so long as the buyer notifies the carrier in writing as soon as loss or damage is discovered on receipt of goods and lodges a claim against the carrier within three days of receipt of goods.
13.1 The seller’s liability for goods sold by it is limited to making good any defects by repair or at the seller’s option by replacement, within a period as specified in the seller’s catalogues or product literature for specified cases or not exceeding 12 calendar months after despatch of goods whichever is the lesser so long as:
(a) The defects have arisen from solely from faulty workmanship or materials
(b) The damage does not arise from:-
- Improper adjustment calibration or operation by the buyer;
- The use of accessories not approved by the supplier in writing;
- Any contamination of leakages caused or induced by the buyer;
- Any modification of the goods which were not authorised in writing by the seller;
- Any misuse of the goods by the buyer or anyone for whom the buyer has a legal responsibility including a minor;
- Any use or operation of the goods outside the physical environmental or electrical specifications of the goods;
- Inadequate or improper maintenance of the goods and
- Fair wear and tear of the product in an unsuitable environment.
- The goods have not received maltreatment, inattention or interference;
- Accessories of any kind used by the buyer were manufactured or approved in writing by the seller; and
- The defective parts or goods are returned promptly and without cost to the seller.
13.2 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 unless responsibility for any claim has been accepted in writing by the seller prior to sale and is limited in accordance with para 13.1 of these conditions
13.3 Except as provided in these conditions, all express or implied warranties, guarantees and conditions under statue or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose are expressly excluded. The seller is not liable for physical or financial injury, loss or damage arising from the supply, installation and use of the goods or arising out of negligence of the seller in anyway whatsoever
14. Sellers Liability
14.1 The seller’s liability for a breach of a condition or warranty implied by Div 2 of pt V of the Trade Practices Act 1974 (other than s 69) is limited to:
(a) In the case of goods any one or more of the following;
- The replacement of goods or equivalent;
- Repair of the goods;
- Payment of costs of replacing the goods or acquiring equivalent goods;
- The payment of the costs of having the goods repaired; or
(b) In the case of Services;
- Resupply of the service; or
- Payment of the cost of having the services supplied again.
14.2 The seller’s liability under s 74H of the Trade Practices Act 1975 is expressly limited to a liability to pay to the buyer an amount equal to
(a) The cost of replacing the goods:
(b) The repair of the goods; or
(c) The cost of repairing the goods whichever is the lowest amount.
(a) Unless otherwise stated all prices quoted by the seller are net, exclusive of GST and the buyer agrees to pay to the seller any GST in addition to the price
(b) Prices quoted are those applicable at the date of quotation and are based on the prevailing exchange rates, customs and import charges, insurances and other costs effecting the price.
(c) If the seller makes any alteration to the price of the goods either before or during currency of the contract, these alterations are for the buyer’s account.
The purchase price of the goods is payable net and payment of the price of goods must be made on or before the due date on the Tax Invoice and expressly as per written agreement between seller and buyer.
- Rights in relation to goods (Romalpa Clause)
The seller reserves the following rights in relation to the goods until all accounts owed by the buyer to the seller are fully paid;
- Ownership of the goods
- To enter the buyer’s premises to retake possession of the goods without liability for trespass or damage; and
- To keep or resell the goods including goods repossessed pursuant to 17(b) above.
18. Buyer’s property
Any property of the buyer left under the seller’s procession, custody or control is completely at the buyer’s risk as regards loss or damage to the property or caused by it.
The seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided within 14 days of a request by the seller for such instructions.
- Returned goods
- The seller will not be under any duty to accept goods returned by the buyer and will only do so on terms to be agreed in writing in each individual case.
- If the seller agrees to accept returned goods from the buyer under para (a) 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.
- Goods Sold
All goods to be supplied by the seller to the buyer are as described on the order acknowledgment agreed by the seller and the buyer and the description on the purchase order be modified as so agreed and prevails over all of the descriptions including specification or enquiry of the buyer.
No order may be cancelled except with consent in writing and on terms which indemnify the seller against all losses.
The buyer indemnifies the seller on a continuing fully indemnity basis from and against any liability, loss, expense or demand arising for or from any representation or statement made by the buyer in respect of the goods to any person. This indemnity survives termination of this agreement by either party for any reason.
- Exclusions of representations and arrangements
Except as referred to in clause 13.1 herein, these terms and conditions supersede and exclude all prior and other discussions, representations and arrangements relating to the supply of the goods or any part of the goods including, but without limiting the generality of the foregoing, those relating to the performance of the goods or the results that ought to be expected from using the goods.
- No waiver
The failure of any part to enforce the provisions of this agreement or to exercise any rights under this agreement is not to be waiver of such provisions or rights and does not effect enforcement of this agreement.
- Force Majeure
If by any fact, circumstance, matter or thing beyond the reasonable control of the seller, the seller is unable to perform in whole or part any obligation under this agreement the seller is relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and is not liable to the buyer in respect such inability.
- Buyer Acknowledgment
The buyer acknowledges that the above provisions of these Conditions of Sale are reasonable and reflected in the price and the buyer accepts the risks of the buyer associated with these conditions and shall issue accordingly.
- Place of Contract
- The contract of sale of the goods is made in the state of Western Australia, Australia.
- The parties shall submit all disputes arising between them to the courts of such state and any court competent to hear appeals from those courts of first instance.