1. Prevailing Conditions
All quotations, offers and contracts are subject to the terms and conditions given below to the exclusions of all others, including without limitation the Customer’s own conditions of purchase unless otherwise agreed in writing by a Director of Accutherm International Pty Ltd.
2. Definitions
“Accutherm” means Accutherm International Pty Ltd, (ABN 17 100 208 964).
“Customer” means the person or entity whose order is received by Accutherm.
“Products” means the products or services supplied by Accutherm.
“Quotation” means the quotation by Accutherm to the customer for the supply of products.
“Price” means the price for products appearing in the quotation or sales invoice.
3. Price
a) Quotations are subject to acceptance within 30 days of the date of Quotation and thereafter are subject to review by Accutherm.
b) Accutherm may withdraw or alter any quotation or offer at any time before it has been unconditionally accepted by Customer.
c) GST is not included in the Price and shall be payable by Customer in addition to the Price.
d) Customer acknowledges that price is based on customs duties and exchange rates applying at the date of quotation or if there is no quotation at the date of receipt by Accutherm of the customer’s order.
e) Accutherm may increase Price to the extent that the cost of supplying Products increases as a result of increases in customs duties and exchange rates and any other statutory charges.
4. Delivery
a) Unless otherwise stated delivery shall be to Customer’s address stated in the Quotation.
b) Products despatched by Accutherm will be at Customer’s expense and risk.
c) The date of delivery stated (if any) on Quotation is the estimated date of delivery only and Accutherm shall be under no liability for any loss or damage howsoever arising if Products are not delivered by that date.
d) Without prejudice to its other rights and remedies, Accutherm shall have the right at its discretion to continue deliveries, suspend deliveries or cancel the balance of any contract if Customer is insolvent, is overdue in making any payment, is otherwise in breach of contract or exceeds any credit limits specified by Accutherm.
e) Where goods are delivered by instalments, each instalment shall be deemed the subject of separate contract on the terms herein stated.
f) Accutherm’s responsibility of Products ceases on signing of the delivery docket. If Customer fails to sign the delivery docket, Products will be deemed to have been delivered in good order and condition unless shortage, damage or other fault is reported to Accutherm within 24 hours of delivery or in writing within 7 days of delivery date.
g) Any failure of Accutherm to deliver within the time stated shall not entitle Customer to repudiate the contract with regard to any balance remaining undelivered.
h) Accutherm shall not be liable for delay in delivery due to causes beyond its reasonable control, such as acts of God, acts of the Customer, acts of civil, military authority, priority, fires, strikes, floods, epidemics, quarantine restrictions, war, riot and delays in transportation. In the event of delay due to such causes, the date of delivery shall be extended for a period equal to the time lost by reasons of such delay.
5. Liability Limitation
Accutherm does not accept any liability or make any warranty in relation to the Products except as provided herein or as required by law. Under no circumstance shall Accutherm`s liability exceed the purchase price of the goods. Accutherm will not be liable for any loss or damage that is incidental, consequential, indirect or due to circumstances beyond Accutherm`s reasonable control even if such loss or damage is the result of the negligence by Accutherm. Such loss or damage includes loss of business profits, business interruption or loss of information which may arise from the direct or indirect use of Products by the Customer.
6. Warranty of Quality
a) Accutherm will (to the extent possible) pass on to Customer the benefit of any manufacturers or suppliers warranty in respect of the Product.
b) Accutherm`s liability will not exceed that of the manufacturers or suppliers warranty.
c) If no manufacturers or suppliers warranty is able to be passed on to the Customer then Accutherm warrants the Product against defects in workmanship only, under proper use for a period of twelve months from delivery.
d) Accutherm will repair or replace at Accutherm`s option, free of charge those Products where Accutherm is satisfied the defect is solely due to faulty workmanship or the use of faulty materials.
e) All costs of returning goods under warranty will be at Customer expense and no responsibility is accepted by Accutherm for products lost or damaged in transit back to Accutherm or its nominated representative.
f) Any complaints regarding the quality of Products must be made in writing to Accutherm within 7 days of delivery of Products.
g) This warranty does not apply to any defects or failures due to:
i. Negligence, accidents, abuse, improper installation, improper operation, improper maintenance, improper electrical/mechanical interfacing of Seller’s plant and equipment with other products, electrical failure, or abnormal conditions of moisture, temperature, dirt and corrosive matter.
ii. Products tampered with or altered, modified or repaired by anyone not previously approved.
iii. Products damaged in shipment or otherwise without Seller’s fault.
iv. Seller has a policy of continuous improvement to its products and reserves the right to alter the specifications, design or to discontinue any products without prior notice. Notwithstanding, all illustrations, descriptions and specifications are by way of example only and are not necessarily applicable to any plant and equipment offered by Seller.
7. Payment
a) Customer must pay the 50% of the Price with the order and 50% on delivery unless credit terms have previously arranged in writing. In which case payment must be made in full within 30 days from the date of invoice.
b) Overdue amounts beyond the trading terms may be subject to interest at the rate of 2% per month. Such interest will not prejudice Accutherm`s right of recovery.
c) Customer shall also reimburse all costs and expenses including legal costs (on a solicitor/client`s basis) incurred by Accutherm in the collection of any overdue account.
d) Customer shall not be entitled to offset any sums payable hereunder against any claims which Customer may have against Accutherm under this contract or otherwise.
8. Title and Risk
Until Accutherm has been paid for in full by the Customer for all Product supplied:
a) Accutherm remains the owner of Product and the Customer is only a bailee.
b) Customer must store the Product separately from other goods, keep them readily identifiable as Accutherm`s goods and maintain proper records of any sale or disposal of the Product.
c) Customer bears all risk in respect of the Product from date of despatch from Accutherm.
d) Customer will not sell the goods except in the ordinary course of business.
e) Customer will allow Accutherm access to the premises occupied by the Customer during normal business hours and to the Product in order to inspect the Product and retake possession of the Product at any time prior to payment in full of the Price payable by the Customer and for any other monies payable by the Customer to Accutherm. Customer acknowledges that such access will be full, free and unhindered and shall not constitute trespass by Accutherm.
All agreements as to the granting of credit by Accutherm (if any) to Customer shall automatically terminate and all amounts whatsoever outstanding by Customer shall be immediately due and payable by Customer to Accutherm upon occurrence of any of the following events:
If Customer commits any act of bankruptcy or compounds or makes any arrangements with its creditors or executes a bill of sale over any of its goods or if any execution or distress is levied upon the goods of Customer.
If Customer being a company is wound up either compulsorily or voluntarily or a receiver of its assets is appointed.
If Customer ceases to carry on a business or if Customer enters into some other form of insolvency administration whether formal or informal.
If Customer fails to pay all amounts whatsoever to Accutherm as and when they become due and payable by Customer to Accutherm.
If before or after Products are supplied to Customer they or any of them become a constituent or component of another product, Accutherm shall have all legal and beneficial title and interest in such aforesaid Products as if they were Products supplied pursuant to Clause 8 hereof.
9. Cancellation of orders
Customer shall not cancel any order placed with Accutherm for Products without the written consent of Accutherm and the payment to Accutherm of any loss incurred by Accutherm as a result of such cancellation.
10. Credits
Except for defective items supplied by Accutherm, items returned for credit by Customer will only be accepted subject to the following conditions:
a) A restocking fee of 20% of the Price will be charged by Accutherm to the Customer.
b) Product must be returned within 14 days of delivery to Customer.
c) Delivery and any other costs to return Product to Accutherm must be paid in full by Customer.d) Product returned will be in the original packaging in an unsoiled, undamaged and re-saleable condition accompanied by a despatch note stating Accutherm`s original invoice number, date of purchase and reason for return.
e) Products returned must not be obsolete, incomplete or otherwise imperfect.
f) Accutherm reserves the right to refuse to credit any Products returned if the claim is considered unjustified after its inspection.
g) Products made to special order will not be credited.
h) No responsibility is accepted by Accutherm for Products lost or damaged in transit during return to Accutherm.i) Products are not “special” or “clearance” stocks.
11. Variations
a) Variations to the contract by Customer following receipt of Customer`s order shall be subject to adjustment for Price, date of delivery and any additional expenses incurred by Accutherm.
b) Clerical errors and misprints in computation, typing or otherwise in Accutherm`s documents including catalogues, pricelists, delivery docket, invoice, statement or credit note shall be subject to correction by Accutherm by means of reissue of the document or by adjusting dockets with reference to the original transaction.
12. Installation
Where a contract includes installation or commissioning of Product for Customer, Accutherm`s liability is limited to correct installation and proper operation of equipment supplied by Accutherm. Accutherm shall not accept any responsibility whatsoever for the proper functioning of any equipment or services provided by others. If damage to Accutherm`s Product or equipment is caused by others, the cost of repair or replacement thereof shall be borne by Customer.
13. Data and Performance
All drawings, designs, programs and printed matter accompanying Quotation or in Customer`s possession before or after it accepts Quotation are informative only. Performance figures are based on Accutherm`s experience and are such as Accutherm would expect to obtain on testing. No liability in respect of any variation thereto shall be accepted by Accutherm unless such performance figures have been guaranteed in writing by Accutherm. In which case they will be subject to recognised tolerance and rejected limits.
It is Customers responsibility to ensure that the capacity and performance of Products are sufficient and suitable for Customer`s purposes.
14. Force Majeure
The Seller shall not be liable for failure or delay in performance caused wholly or partially by unavailability of freight or shipping space, failure of any third party manufacturer/supplier to supply whole or part of any goods to Seller, prohibitions or restrictions under any law or by any government or authority or inability to obtain any necessary export licence or import licence, or any act of force majeure including, but without limitation strikes, lockouts, shortage of labour, flood, fire, earthquakes, explosion, accident, breakdown of machinery, rioting, civil or industrial disturbances, acts of war (whether declared or not), Acts of God or any other causes whether or not of a similar nature or beyond Seller’s control. In the event of any such failure or delay, Seller may at its discretion and without liability terminate whole or any part of its performance under Seller’s Quotation or postpone its performance. This clause 14 does not apply to any obligation of Buyer to pay money.
15. Notices, Fees and Statutory Requirements
The requirements of Australian statutory bodies such as those for the protection of the environment and the regulation of labour will insofar as is possible be considered by Seller in any design and manufacture. At the written request of the Buyer, Seller is prepared to advise Buyer on these aspects. Notwithstanding, Buyer shall conform with all requirements of such and any other relevant bodies (whether Australian or otherwise) and, for obtaining all necessary planning, operating or building or other consents or permits which may be necessary (unless agreed otherwise in writing) and, for the payment of any applicable fees or charges, for the purpose of completing the contracted work in terms of Seller’s Quotation.
16. Taxes
All Sales Tax, Goods and Services Tax (‘GST’) and other legally chargeable taxes, duties, imposts and excises are excluded from Seller’s quoted contract price, and if applicable will be charged to Buyer as extras. If GST is imposed on any supply by Seller of plant and equipment and/or Services Buyer agrees that it shall pay and Seller shall be entitled to recover from Buyer the amount of GST. For that purpose, Seller shall issue to Buyer a tax invoice in respect of that taxable supply.
17. Applicable Law
Seller’s Quotation (including without limitation these General Conditions) shall be governed by the laws of the State of Victoria, Australia. Both Seller and Buyer irrevocably submit to the non-exclusive jurisdiction of the Courts of Victoria, Australia and the Courts entitled to hear appeals therefrom.
18. General
a) The Buyer must not without Seller’s prior written approval, assign or transfer or purport to assign or transfer Seller’s Quotation or the benefit thereof to any other person whatsoever.
b) No indulgence or forbearance extended to Buyer shall limit or prejudice any other right of claim to Seller.
c) The supply of goods by Seller shall not confer any right upon Buyer to use any of Seller’s trademarks or tradename without Seller’s prior written consent, and at all times such marks or names remain the property of Seller.
d) If any provision or part of a provision of Seller’s Quotation should be held unenforceable or in conflict with the law of any relevant jurisdiction, any part so held unenforceable or invalid shall be read down to the minimum extent necessary to render it enforceable and valid, and if incapable of being read down it shall be severed from the remainder of the contract which shall not be effected by such severance.
e) The rights and obligations of the parties under Seller’s Quotation shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods (1980).
f) No term or provision of Seller’s Quotation will be construed against a party on the basis that Seller’s Quotation or the term in question was put forward or drafted by or on behalf of that party.
g) Unless otherwise stipulated by the Seller, all applicable delivery terms notified from time to time by Seller to Buyer shall be Incoterms 2000.
19. Entire Contract
These Terms and Conditions and Quotation comprise the entire contract between Accutherm and Customer. No amendment thereto shall be binding unless made in writing.These terms and conditions of sale shall be governed by and constituted in accordance with the laws of courts of competent jurisdiction. Customer irrevocably submits to the exclusive jurisdiction of a court in the capital city of a state or territory that Accutherm directs in relation to any of its parties commencing such terms and conditions.