Terms and Conditions of Sale
1.1 “Seller” means Machine Technology Pty Ltd or its related parties as provided under the Corporations Act 2001 (Cth).
“Buyer” means the buyer of the goods and/or services specified in the order form, which goods and/or services are the subject matter of the contract.
1.2 Goods and/or services (“goods”) are supplied by the Seller only on the conditions and terms contained herein (including any additions or variations made by the Seller in writing). The placement of an order with the Seller or acceptance of the Seller’s offer to supply goods or receipt of delivery of goods from the Seller constitutes acceptance of the conditions and terms contained herein (including any additions or variations made by the Seller in writing).
1.3 Conditions or terms which are in addition to or are inconsistent with the conditions and terms herein shall not form a part of any contract to which the Seller is a party unless specifically agreed to and confirmed in writing and signed by an authorised officer of the Seller.
1.4 The conditions and terms appearing herein shall be incorporated into all contracts made by the Seller to supply the Buyer with goods.
2.1 No contract will arise until the Seller’s Quotation is accepted by the Buyer either orally, in writing or otherwise.
3.1 The Buyer, and where a corporation, its Directors and where a partnership, its Partners, and where an individual or collection of individuals, those individuals, hereby charge their right, title and interest in any and all realty of which such persons, whether solely, jointly or otherwise are the registered proprietors in favour of the Seller with the obligations of the Buyer under these terms and conditions. The Buyer and the persons referred to herein acknowledge that the Seller may, pursuant to its interest, conferred under this clause, register a caveat on any realty referred to herein.
4.1 Unless otherwise indicated, all prices quoted by the Seller are ex-works (shipping point) and exclusive of GST (as that term is used in A New Tax System (Goods and Services Tax) Act, 1999 as may be amended from time to time.
4.2 If the price quoted is exclusive of GST and GST is payable by the Seller in respect of the supply of the goods to the Buyer the price of the goods shown in any quotation, invoice or other document (“the Original Amount”) is to be increased so that the Seller receives an amount (“Increased Amount”) which after subtracting the GST liability of the Seller arising from the supply of the Goods results in the Seller receiving the Original Amount.
4.3 The Seller will do all things reasonably available to it to assist the Buyer to claim, on a timely basis, any input tax credit (if any) the Customer may be entitled to claim for the acquisition of the goods from the Seller. This includes the Seller maintaining its registered status for GST purposes, and issuing Tax Invoices for the goods delivered to the Buyer.
4.4 Unless the price quoted is specifically stated to include freight costs, the Buyer shall be liable for all freight costs. Quotes are valid for a period of thirty (30) days from the date of issue of such quote.
4.5 The Seller reserves the right to correct all typographical or clerical errors which may be present in any offer or quotation.
5.1 All goods are supplied on a C.O.D. basis unless credit terms have been granted.
5.2 A credit application must be received and approved by the Seller before credit terms will be granted. Credit terms shall be as agreed expressly in writing.
5.3 Ownership and property in the goods will not pass to the Buyer but will remain with the Seller until such time as:
(a) full payment is made by the Buyer to the Seller for the goods and there is no other amounts owing to the Seller by the Buyer; or
(b) the Buyer sells the goods to his customer in the ordinary course of business.
5.4 Until ownership and property in the goods passes to the Buyer the Buyer will:
(a) hold the goods on trust and as a fiduciary bailee for the Seller;
(b) store the goods in a way that clearly manifests the Seller’s title and ownership in the goods and in a manner which enables the goods to be cross referenced to particular invoices;
(c) permit a representative of the Seller to enter upon the Buyer’s premises at a time at the choosing of the Seller to inspect the goods.
5.5 If the Buyer makes default in any payment of an amount due to the Seller or an event of default as specified in clause 5.9 hereof occurs, the Seller may without notice and without prejudice to any of its rights and remedies recover and/or re-sell the goods or any part of them, and may enter upon the Buyer’s premises to do all things necessary to take possession of the goods. The Buyer will be liable for the Seller’s costs connected with the exercise of the Seller’s rights under this clause, payable on demand.
5.6 In the event of sale of the goods by the Buyer, the Buyer in his capacity as trustee and bailee will:
(a) hold the proceeds of sale in a separate bank account on trust for the Seller and not mix any other funds with such proceeds of sale; and
(b) pay to the Seller from such proceeds of sale, the amount which is owed by the Buyer to the Seller at the time the Buyer receives such proceeds of sale.
5.7 In the event that the Buyer breaches clauses 5.6 and mixes other moneys with the proceeds of sale being held on trust, then the Buyer will continue to hold on trust and as a fiduciary bailee for the Seller, such part of the moneys as relate to the goods supplied by the Seller. Such part shall be deemed to be equal in dollar terms to the amount which is owed by the Buyer to the Seller at the time the Seller receives the proceeds of the sale.
5.8 In the event that:
(a) the Seller uses the goods in some manufacturing or construction process of its own or of some third party; and
(b) the product resulting from the manufacture or construction process is sold by the Buyer; then the Buyer will hold on trust and as a fiduciary bailee, such part of the proceeds of sale as relates to the goods supplied by the Seller. Such part shall be deemed to be equal in dollar terms to the amount which is owed by the Buyer to the Seller at the time the Buyer receives such proceeds of sale.
5.9 Notwithstanding any other conditions and terms payment shall become due immediately upon the Buyer (being a natural person) committing any act of Bankruptcy or the Buyer (being an incorporated company) doing any act which entitles any person to apply to wind up the Buyer (other than for the purpose of reconstruction), or if any of the events referred to in Section 460 of the Corporations Act occurs, or if a receiver, receiver and manager or administrator of the Buyer is appointed. Upon the happening of any of those events the Seller may without prejudice to its other rights immediately by written notice to the Buyer either suspend further deliveries, require payment in advance for all such deliveries or terminate any contract.
5.10 The Buyer shall pay interest on all overdue payments at the rate of 2% per month (or such lesser rate as the Seller may specify) from the due date for payment until the date that payment is actually made.
5.11 Notwithstanding the conditions and terms herein, and unless otherwise agreed in writing, the risk in the goods shall pass to the Buyer upon delivery to the Buyer or his agent or to a carrier commissioned by the Buyer, and the Buyer shall at his own expense insure the goods against storm and tempest, loss or damage by fire, accident or malicious or negligent damage or any other damage howsoever caused and shall maintain such insurance until ownership and property in the goods passes to the Buyer.
6.1 The Seller may:
(a) appropriate any payments received from the Buyer for goods to any amounts that are outstanding from the Buyer from time to time; and
(b) offset any amounts due by the Seller to the Buyer or any credit balances against amounts that may be due by the Buyer to the Seller from time to time.
6.2 Any offset will be effective should any of the events stipulated in clause 5.9 occur. In that event, the Seller will not be obliged to pay to the Buyer any amounts due by the Seller while amounts due by the Buyer are outstanding.
6.3 The Seller may buy any currency and/or make any currency conversion as is necessary to effect the offset.
7. SALE BY SAMPLE
7.1 The goods the subject of this Agreement are based upon a sample provided by the Seller to the Buyer. The description of the goods is as set out in the Seller’s Quotation to the Buyer.
7.2 If the goods delivered by the Seller to the Buyer pursuant to this Agreement correspond with the sample provided by the Seller to the Buyer the goods shall be deemed to conform with the description of same in the Quotation.
7.3 In the event that the Buyer does not notify the Seller within seven (7) days of actual physical receipt of the goods of any rejection on the basis that the goods do not conform with the sample provided by the Seller to the Buyer there shall be a deemed acceptance of same by the Buyer. The seven (7) day time period referred to herein is expressly recognised by the parties as being a reasonable period of time within which to make any such rejection.
8.1 The Buyer may cancel his order only with the Seller’s written consent, and upon payment of reasonable and appropriate cancellation charges to be determined by the Seller, which will include, but not be limited to, the actual costs already incurred by the Seller in fulfilling the order.
9.1 The Seller will make all reasonable efforts to have the goods delivered to the Buyer on the date agreed between the parties as the Delivery Date but the Seller shall be under no liability whatsoever should delivery not be made on that date.
9.2 This agreement shall be either a CIF contract or a FOB contract, as stipulated in the Seller’s Quotation.
9.3 Where this agreement takes the form of a CIF contract delivery shall be made at the location stipulated on the Seller’s Quotation.
9.4 Where this agreement takes the form of an FOB contract risk in the goods shall pass to the Buyer at the time of delivery of the goods on board ship.
9.5 Deliveries may be totally or partially suspended by the Seller during any period in which the Seller may be prevented or hindered from delivering by the Seller’s normal means or normal route through any circumstances outside its reasonable control, including but not limited to inability on the part of the Seller’s supplier to supply required quantities of the goods to the Seller for any reason whatsoever including strikes, lockouts, raw material shortages, accidents and breakdowns of plant or machinery. The Seller shall not be under any liability whatsoever in respect of such suspension and in particular the Seller shall not be under any obligation to deliver at any future date any goods not delivered during the period of suspension.
9.6 If delivery is delayed at the request of the Buyer, the goods may be stored by the Seller subject to payment by the Buyer of an extra charge based on storage costs.
9.7 The Seller will endeavour to deliver the quantity of goods stipulated in the Quotation. The Buyer however acknowledges that production conditions may lead to overruns or shortages. The Buyer shall accept delivery notwithstanding that the quantity delivered may be more or less than the quantity ordered provided that such excess or shortage is not more than 5% of the quantity ordered. A pro rata addition or deduction will be made to the agreed contract price in the event of excess or shortage on delivery.
10.1 Consumers have the benefit of conditions and warranties implied by the Trade Practices Act 1974 (TPA) and similar provisions of State and Territory enactments. Nothing herein excludes, limits, restricts or modifies any statutory obligation of the Seller or any rights, entitlements and remedies conferred upon the Buyer if that cannot lawfully be effected.
10.2 The Seller warrants that the goods supplied shall be as per sample. If the goods supplied are not as per sample the Seller shall, at its option, replace the goods or refund the price paid by the Buyer, but shall not be liable to the Buyer for any loss (including but not limited to loss of profits and consequential loss) or for damage to persons or property or for death or injury caused by any act or omission (including negligent acts or omissions) of the Seller or the Seller’s agents.
10.3 The Seller’s liability to replace goods or to refund the price paid by the Buyer in clause 10.2 above is conditional upon the Buyer within 7 days of delivery of the goods sending a written claim to the Seller setting out the full particulars of the claim and where possible returning to the Seller sufficient part of the goods to enable the Seller to make a proper examination.
10.4 Subject to the conditions and terms herein and to any legislation to the contrary:
(a) The Seller does not warrant that the goods supplied shall be fit for any purpose or purposes made known to the Seller by the Buyer either expressly or by implication. The Buyer acknowledges that he has sole responsibility for ensuring that the goods the subject of the contract are fit for his purpose or purposes.
(b) The Seller does not warrant that the goods supplied comply with any statutory requirements relating to the marketing of any goods. The Buyer acknowledges that he has sole responsibility for ensuring compliance with such legislation including the provision of any information or warnings required by such legislation.
(c) The Seller does not warrant the overall performance or safety of any goods into which the goods the subject of the contract are integrated. The Buyer acknowledges that he has sole responsibility for ensuring the overall performance and safety of any goods into which the goods the subject of the contract are integrated and sole responsibility for any markings, warnings or instructions on any goods into which the goods the subject of the contract are integrated.
(d) Representations, undertakings, warranties and agreements not expressly contained herein shall not be binding upon the Seller as conditions, warranties or representations. All such conditions, warranties and representations on the part of the Seller, whether express or implied, statutory or otherwise, whether collateral or antecedent or otherwise are expressly negatived and excluded.
(e) Any advice, recommendation, information, assistance or service (the “Advices”) provided by the Seller in relation to the goods imported, manufactured or sold by it, or in relation to their use or application, is given in good faith and is believed by the Seller to be appropriate and reliable. However, the Buyer acknowledges that in purchasing the goods it has not relied upon the Advices provided by the Seller or its agents.
(f) The Seller shall not be liable to the Buyer for any loss (including but not limited to loss of profits and consequential loss) or for damage to persons or property or for death or injury caused by any act or omission (including negligent acts or omissions) of the Seller or the Seller’s agents, wherever occurring, arising from the subject matter of the contract.
10.5 Should the Seller be liable for breach of a condition or warranty implied by Division 2 of Part V of the TPA (other than that implied by Section 69 of the TPA) the liability of the Seller for such breach shall, subject to Section 68A(2) of the TPA be limited to one of the following as determined by the Seller:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods.
10.6 Before returning any goods to the Seller, the Buyer must obtain a Return Authorisation Number from the Seller. The returned goods must be in original packaging and accompanied by a copy of the Seller’s invoice, and the Buyer must send the Seller freight plus insurances pre-paid (one way).
11.1 The Buyer shall indemnify and hold harmless the Seller from and against any and all claims, proceedings, judgments, damages, losses, costs, expenses or liabilities (whether arising under any statute or under common law) made or recovered against the Seller as a result of or arising out of or in connection with the Seller’s utilisation of a design or as a consequence of the Seller following an instruction relating to the manufacture of goods, where such involves an infringement of a patent, trade mark, registered or unregistered design, copyright or any other right whatsoever.
11.2 The Buyer shall indemnify and hold harmless the Seller from and against all claims, proceedings, judgments, damages, losses, costs, expenses or liabilities (whether arising under any statute or under common law) made or recovered against the Seller in connection with the goods the subject of the contract, including, but not limited to, claims, proceedings, judgments, damages, losses, costs, expenses or liabilities arising as a consequence of the Buyer’s misapplication, misassembly or design, or the markings, instructions or warnings on goods into which goods the subject of the contract are integrated.
11.3 The Buyer shall indemnify the Seller against all losses and expenses which the Seller may suffer or incur due to the failure of the Buyer fully to observe its obligations under the contract.
11.4 The Buyer shall indemnify the Seller against any liability or any costs (including solicitor/client legal expenses) arising as a consequence of a repossession of goods as provided for in clause 5.5.
12.1 The Buyer has sole responsibility for undertaking any recall of his goods into which goods supplied under the contract have been integrated. The Buyer also has sole responsibility for the making of any statutory notifications required by legislation in force in the Commonwealth, the States and Territories in connection with any such recall.
12.2 The Buyer shall bear all costs of any recall of his goods into which goods supplied under the contract have been integrated.
12.3 Subject to the conditions and terms herein and to any legislation to the contrary the Seller shall not be liable to the Buyer for any loss (including but not limited to loss of profits and consequential loss) or for damage to persons or property or for death or injury in connection with the recall of goods into which goods supplied under the contract have been integrated.
13. MATERIALS AND GOODS RECEIVED BY THE SELLER FROM THE BUYER
13.1 All materials and/or goods received by the Seller from the Buyer for the carrying out of work thereon by the Seller are at the risk of the Buyer and not the Seller. The Seller shall not be liable in respect of the loss of or any damage whatsoever to any materials and/or goods while such materials and/or goods are in the custody or under the control of the Seller.
13.2 The Seller shall not be liable for any loss (including but not limited to loss of profits and consequential loss) or damage which may be sustained by the Buyer as a consequence of the loss of or damage to any materials and/or goods received from the Buyer.
13.3 The loss or damage referred to shall mean and include without limiting the foregoing loss or damage caused by the negligence or wilful act or default of the Seller or the Seller’s agents or employees whether or not such loss or damage is foreseeable or contemplated by the Seller.
14. NO WAIVER
14.1 The failure or delay of the Seller in the exercise of any right, power or privilege available to it shall not operate as a waiver thereof nor as a waiver of the exercise by the Seller of any other right, power or privilege.
15.1 The validity and interpretation of the provisions herein and their effect shall be governed by the laws in force in New South Wales. Each party submits to the non-exclusive jurisdiction of Courts of that State or courts of appeal therefrom.
15.2 Should any part of these conditions and terms be held to be void or unlawful, these conditions and terms shall be read and enforced as if the void or unlawful provisions had been deleted.