Russell
Fraser Sales Pty Limited (“the Vendor”) provides the following
Standard Terms and Conditions which apply to all quotations and sales made by
the Vendor. All purchases by the customer, owner or its agent (“the
Buyer”) are expressly limited and conditional upon acceptance by the
Buyer of the following terms and conditions and any provision, printed or
otherwise contained in any purchaser order, confirmation or acknowledgment
inconsistent with, different from or in addition to the following Standard Terms
and Conditions are not accepted by the Vendor, unless specifically agreed to in
writing:-
1. Quotations
The Vendor’s quotation is valid for 30 days from
the date of quotation, unless otherwise stated. This quotation supersedes all
other quotations or correspondence concerning the transaction or enquiry.
Quotations contain proprietary information of the Vendor and are provided to
the Buyer strictly on the understanding that the Buyer will use the information
solely for internal purposes and not disclose it to any third party without the
prior written approval of the Vendor.
2. Price
Modification, GST and other charges:
The Vendor’s price does not include excises,
duties, tariffs, goods and services taxes or any other governmental charges
which the Vendor may be required to pay or collect under any future law, with
respect to the sale, transportation, delivery, storage, installation or use of
any of the goods (“Products”) sold or services provided
(“Services”) by the Vendor. The Buyer must pay all such excises,
duties, tariffs, taxes and charges.
3. Payment
and Credit Terms:
Unless otherwise specified in writing by the Vendor
payment for Products and Services furnished by the Vendor will be made Net 7
Days from the date of invoice.
4. Limited
Warranty:
(a) For
the Product supplied by the Vendor which is not manufactured by the Vendor the
warranty of the original manufacturer, if any, shall be the only warranty given
in respect of the Product.
(b) For
the Product supplied by the Vendor which is manufactured by the Vendor the
Product carries a 1 (one) year warranty. If within 1 (one) year after the date
of receipt of the Product by the Buyer the Product proves to be defective in
material or workmanship or fails to produce results consistent with the
Vendor’s specifications for the Product in question upon examination by
the Vendor, the Vendor will repair the product.
(c) The
Vendor will not be responsible for the costs of removal, installation or re-
installation of the Product. Furthermore, the Vendor will not be responsible
for and assumes no liability for materials or workmanship or any transportation
charges, labour costs or other related expenses for any work performed by third
parties in the repair or replacement of defective products or workmanship,
without the Vendor’s written consent. The Vendor will not be responsible
for any consequential costs or losses.
(d) Except
as provided in these Standard Terms and Conditions, all warranties,
undertakings, conditions or representations (whether innocent or negligent),
including without limitation those with respect to merchantability, fitness for
any purpose, quality or durability, whether express, implied, statutory or
arising from a course of dealing, usage of the trade or otherwise with respect
to any equipment or order, are expressly excluded. No express or implied
warranty is given as to the capacity, efficiency or performance of any
equipment, except as may be provided in a written agreement signed by the
Vendor.
(e) The
Vendor’s liability for a breach of a condition or warranty implied by
Division 2 of Part V of the Trade Practices Act 1974 (other than Section 69) is
hereby limited to:
(i) in
the case of the Product, any one or more of the following:
(A) the
replacement of the Product or the supply of equivalent Product;
(B) the
repair of the Product;
(C) the
payment of the cost of replacing the Product or of acquiring equivalent Product
(D) the
payment of the cost of having the Product repaired; or
(ii) in
the case of services:
(A) the
supplying of the services again; or
(B) the
payment of the cost of having the services supplied again.
(f) The
Vendor’s liability under Section 74H of the Trade Practices Act 1975 is
expressly limited to a liability to pay to the purchaser an amount equal to:
(i) the
cost of replacing the Product;
(ii) the
cost of obtaining equivalent Product;
(iii) the
cost of having the Product repaired;
whichever is the lowest
amount.
5. Retention
of Title
(a) The
Vendor reserves the following rights in relation to the Product until all
accounts owed by the Buyer to the Vendor are fully paid:
(i) legal
ownership of the Product;
(ii) to
enter the Buyer’s premises (or the premises of any associated company or
agent where the Product are located) without liability for trespass or any
resulting damage and retake possession of the Product; and
(iii) to
keep or resell any Product repossessed.
(b) If
the Buyer resells the Product the Buyer shall hold such part of the proceeds of
sale as represents the invoice price of the Product sold in a separate
identifiable account as the beneficial property of the Vendor and shall pay
such amount to the Vendor upon request. Notwithstanding the provisions above
the Vendor shall be entitled to maintain an action against the Buyer for the
purchase price and the risk of the Product shall pass to the Buyer upon
delivery.
(c) In
the event that the Buyer uses the Product in some manufacturing or construction
process of its own or some third party then the Buyer shall hold such part of
the proceeds of such manufacturing or construction process as relates to the
Product in a separate identifiable account as the beneficial property of the
Vendor and shall pay such amount to the Vendor upon request. Such part shall be
deemed to equal in dollar terms the amount owing by the Buyer to the Vendor at
the time of receipt of such proceeds.
6. Buyer’s
Property
Any property of the Buyer under the custody or control of the Vendor shall be
entirely at the Buyer’s risk as regards loss or damage caused to the
property or by it.
7. Performance
Any performance figures given by the Vendor are
estimates only. The Vendor shall be under no liability for damages for failure
to attain such performance figures unless specifically guaranteed in writing
and any such written guarantee shall be subject to the recognised tolerances
applicable to such figures in the industry.
8. Trade
Practices Act
Nothing in these conditions shall be read or applied
so as to exclude, restrict or modify or have the effect of excluding,
restricting or modifying any condition, warranty, guarantee, right or remedy
implied by law (including the Trade Practices Act 1974) and which by law cannot
be excluded, restricted or modified.
9. Limitation
of Liability
(a) The
Vendor’s liability is limited to the price applicable to the Product or
Services determined defective, and in no event will the Vendor’s
cumulative liability be in excess of the total sales order price, whether
arising under warranty, contract, negligence, strict liability, indemnification
or any other cause or combination of causes whatsoever.
(b) Except
as otherwise provided in these Standard Terms and Conditions, the Vendor will
not be liable for general, special, direct, indirect, incidental or
consequential damages, including without limitation loss of profits, revenues
or other economic losses whether arising under warranty, contract, negligence
(including negligent misrepresentation) strict liability, indemnification, or
any other cause or combination of causes, including any claim of concurrent
liability arising from a duty of care by operation of law or otherwise. These
limitations shall apply notwithstanding any fundamental breach or failure of
essential purpose of a limited remedy.
(c) Buyer’s
remedies are specifically limited to the repair or replacement of the Product
and are exclusive of all other remedies.
10. Back-charges
No back-charges will be paid or allowed by the Vendor,
unless the Vendor is notified in writing of any products defect claim pursuant
to Clause 4 Limited Warranty. All back-charges must be approved in writing
before any Product is repaired, replaced or altered in any manner by the Buyer
or its nominee, or returned to the Vendor.
11. Cancellation
fee
The Buyer may not cancel any order except under
written notice and payment to the Vendor of all reasonable costs arising from
the cancellation, plus a cancellation fee of 2.5%.
12. Force
Majeure
The Vendor will be excused from its obligations in the event and to the extent
that its performance is delayed or prevented:
(a) by
any circumstance (except financial) reasonably under its control (eg.
failure by a third party such as a manufacturer to repair a defective Product for
whatever reason); or
(b) by
fire, explosion, breakdown of machinery or equipment, plant shutdown, strikes
or other labour disputes, riots or other civil disturbances, or voluntary or
involuntary compliance with any law, order, regulation, recommendations or
request of any governmental authority. In addition, The Vendor will be excused
in the event of the partial or total failure of any of its usual means of transportation
of the products.
Any costs incurred as a result of the above
are to be reimbursed to the Vendor by the Buyer.
13. Assignment
No claim against the Vendor arising directly or
indirectly out of or in connection with the Products furnished by the Vendor
may be assigned by the Buyer or by operation of law without the prior consent
in writing of the Vendor.
14. Severability
Invalidity of any of these Terms and Conditions will
not affect the validity of any other provision and the remaining provisions
will remain in force.
15. Waiver
Failure to enforce any of these Standard Terms and
Conditions in a particular instance will not constitute a waiver of or preclude
subsequent enforcement of any of these provisions.
16. Applicable
Law
The agreement of the parties shall be construed and
enforced with the laws of the State of New South Wales.
