Terms and Condition of Sale
1. PARTIES – Where herein used the word “Company” means Albatech Pty Ltd and the word “Purchaser” means the person, firm or company whose name and address is endorsed on the front hereof or referred to in the document attached hereto or such other document in which these terms and conditions of sale are expressly referred to or contemplated.
2. GENERAL – These terms and conditions shall apply to any agreement for the sale of any goods by the Company except only to the extent that they are specifically modified or excluded by the Company in writing and that modification or exclusion is notified to the Purchaser. These terms and conditions shall be incorporated in any quotation, tender or other offer of the Company to the Purchaser and in any acceptance by the Company of any order or other offer of the Purchaser. Terms or conditions incorporated in or referred to in any offer or order of, or purported or actual acceptance of a Purchaser shall be of no effect and shall form no part of the agreement between the Company and the Purchaser unless specifically agreed in writing by the Company. Unless the context otherwise requires, the term “goods” shall mean the goods agreed to be sold by the Company subject to any of these terms and conditions.
3. DESCRIPTION -If any description of the goods is contained overleaf or in any other document, that description is provided by way of identification only and the use of that description shall not constitute a contract of sale by description. Any description of any goods in any brochure, document or other sales literature used by the Company may be approximate and is for general information only and shall not form part of any agreement between the Company and the Purchaser. Any performance figures given by the Company are based on its experience but the company shall have no liability if those figures are not obtained, unless they are specifically guaranteed in writing by the Company.
4. QUOTATIONS AND TENDERS – Subject to the right of the Company to withdraw quotations and tenders early notwithstanding that the quotation or tender does not state this right elsewhere, and unless otherwise specified in writing by the Company, quotations and or tenders of the Company will be open for acceptance for 30 days from the date of issue. Unless otherwise stated, all prices contained in any quotation are based on the costs of material, labour and (where applicable) freight, insurance, rates of exchange, duty and other costs known to the Company on the date of the quotation. If by the date of dispatch any variation (whether by rise or fall) occurs with respect to the cost to the Company of supplying the goods or any part thereof or (where applicable) in the cost of freight, insurance, rates of exchange, duty or other costs, the prices stated shall be adjusted accordingly.
5. PAYMENT – Subject to the following provision of this paragraph, all payments shall be made strictly net cash in Australian dollars within 30 days after the date of the invoice. Time shall be of the essence. Notwithstanding this, the Company reserves the right to require payment earlier or require cash on delivery. All export sales are subject to the prompt provision by the Purchaser of an irrevocable letter of credit satisfactory to the Company, in favour of the Company. Late Payment – If payment is not made in accordance with these terms and conditions, the Company shall without prejudice to any other remedy be entitled to charge interest and administration charges of two per cent (2%) above the overdraft rate charged to the Company by its bankers from time to time on the monies outstanding. The parties agree that this interest is a genuine pre-estimate of the loss that the Company will suffer upon the Purchaser’s default. The Purchaser will also be liable for any legal or other costs incurred by the Company in attempting recovery of amounts owed by the Purchaser to the Company.
6. PRICES – All prices shall be at the prices stated in the Company’s applicable price list ruling on the date or dates of despatch of the goods by the Company from its premises. G.S.T and similar taxes are not included in prices quoted or in list prices but will be charged to the Purchaser where applicable.
7. DELIVERY – Except in export sales, the Company will deliver goods by the Company’s nominated transport company with all costs charged to the customers account. In export sales, delivery will be Ex-works or otherwise as agreed by the Company in writing. Any delivery dates quoted by the Company shall be approximate dates only.
8. DELAY AND INSTALMENTS – The Company shall not be liable for any failure to deliver or for any delay in delivery occasioned by any acts of God, strike, combination of industrial action, lockout, difficulty in procuring suitable materials or articles or substances required in the manufacture of the goods, shortage of stocks, lack or shortage of labour, delays in transportation or in transit, governmental or legal prohibitions or restrictions, fire, flood, hostility, civil commotion or other impediments whatsoever (whether similar in nature to the foregoing or not) reasonably beyond the Company’s control. The Company reserves the right to deliver by Instalments and each Instalment shall be deemed to be sold under a separate contract. Failure to deliver any Instalment shall not entitle the Purchaser to terminate its agreement with the Company.
9. RISK – All risk in the goods shall pass to Purchaser and will be borne by the Purchaser from the time: (a) if the Company agrees to hand the goods over to a carrier at a particular place, when the Company hands over the goods to the carrier at that place; and (b) in any other case, when the goods are placed at the disposal of the Purchaser.
10. PROPERTY – 10.1 The Company shall remain the sole and absolute owner of the goods until the price for the goods has been received in full by the Company from the Purchaser. 10.2 Until the Company has received the price of the goods in full: (a) the Purchaser shall be bailee of the goods for the Company and shall store them upon its premises separately from its own goods or those of any other person and shall store them in a manner enabling them to be readily identifiable as goods of the Company; (b) the Company shall have the right at any time to enter the Purchaser’s premises and retrieve the goods; (c) the Purchaser shall not sell or dispose of any of the goods or any interest in the goods without the prior written consent of the Company. 10.3 If the Company consents in writing to the sale or disposal or if any sale or disposal is made in breach of paragraph 10.2 and notwithstanding such breach: (a) the Purchaser shall inform any person to whom it proposes to sell or dispose of the goods or any interest in the goods (the Acquirer) of the Company’s interest; (b) any sale or disposal shall be made as agent (including as agent exceeding its authority, where appropriate) of the Company; (c) the Purchaser shall ensure that the terms of the sale or disposal to the Acquirer includes a term which is identical to this paragraph 10 except that references to the Company shall be references to Albatech Pty Ltd and references to the Purchaser shall be references to the Acquirer; (d) notwithstanding that the payment of the price for the goods would not otherwise have been due by the Purchaser, the Purchaser shall be immediately obliged to pay the price for the goods to the Company immediately it receives payment from the Acquirer; (c) the Purchaser shall hold all its rights against the Acquirer and any proceeds it receives in trust for the Company; (f) the Purchaser agrees that the Company shall be entitled to trace all and any proceeds arising from any sale or disposal of the goods until the Purchaser pays the full price for the goods to the Company; and (g) the Purchaser shall at the Company’s request assign its claims against the Acquirer and agrees irrevocably to appoint the Company and each of its officers as its attorney to give effect to and complete that assignment. 10.4 Until the price for the goods has been received by the Company in full from the Purchaser, the Purchaser shall act at all times in a fiduciary capacity of the utmost good faith toward the Company. 10.5 Where – (a) the Purchaser makes a new object from the goods, whether finished or not; (b) the Purchaser mixes the goods with other articles; or (c) the goods becomes part of the other product,the Purchaser agrees with the Company (d) that the ownership of the new object or the other goods immediately passes to the Company; and (e) until payment of all sums owing to the Company whether under this or any other contract that the Purchaser shall hold them as a fiduciary for the Company. 10.6 For the purposes of removing doubt the ownership of the new object or other goods passes to the Company at the beginning of the single operation or event by which the product is converted into a new object, is mixed or becomes part of other goods (the “New Goods”). 10.7 Where the Company has not been paid in the manner required by these terms, the Purchaser agrees with the Company to keep the New Goods as a fiduciary for the Company and, unless otherwise required by the Company, to store the New Goods in a manner that clearly shows the ownership of the Company.
11. PACKING – The price quoted includes the Company’s standard packing where applicable. The cost of any special packing required by the Purchaser or any special or export packing which may in the Company’s opinion be required, shall be a further charge for the Purchaser’s account.
12. CLAIMS – Except only to the extent that the Purchaser has rights and remedies in respect of the goods under applicable Australian laws which cannot be modified by agreement, the Company will accept no claim in respect of the goods and shall not be liable to the Purchaser and the goods will be deemed to comply with the agreement between the Company and the Purchaser unless a claim in writing is received by the Company within 7 days after delivery in sales within Australia or within 21 days of the date of arrival of the goods at the port of destination in export sales.
13. LIMITATION OF LIABILITY – Nothing in these terms and conditions shall exclude, restrict or modify any rights of the Purchaser under any applicable legislation in Australia which, pursuant to that legislation, cannot be excluded, restricted or modified by agreement. All terms, conditions, warranties and obligations implied or included in the agreement between the Company and the Purchaser by any legislation or statute or rule is excluded to the fullest extent allowable by law. To the fullest extent allowable by law, the Company shall be under no liability to the Purchaser at law or in equity or pursuant to the provisions of any statute, rule or regulation or otherwise for any claims, demands, losses, damages, costs or expenses arising out of or connected with any performance or non-performance by the Company including, without limiting the generality of the foregoing, any act or omission of the Company, its officers, servants, agents, contractors or other representatives. If any condition, warranty or obligation is contained in the agreement between the Company and the Purchaser or imposed on the Company by virtue of any applicable legislation in Australia, then to the extent to which the liability of the Company in respect to that condition, warranty or obligation cannot lawfully be or is not otherwise excluded, restricted or modified by these terms and conditions, the liability of the Company in respect of that breach shall amount to the fullest extent allowable by law be limited to an equal to the price referred to in that quotation or, at the option of the Company, any one or more of the following: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and, subject as aforesaid, in no event shall the Company be liable whether in tort or in contract or otherwise for any special indirect or consequential damages, including, but not limited to damage for loss of revenue or sales, costs incurred in connection with substitute facilities, any loss suffered by any third party, or the loss of any actual or anticipated profits.
14. ENTIRE TERMS AND NO TERMS IMPLIED -Except only to the extent that additional terms have been agreed by the Company in writing, these terms and conditions of sale constitute the entire terms and conditions of the agreement of sale between the Company and the Purchaser and all representations, conditions or warranties and agreements (whether expressed or implied) not contained. herein are hereby expressly excluded (except only to the extent that the Purchaser has rights and remedies under applicable legislation in Australia which rights or remedies cannot be modified or excluded by agreement). The agreement between the Company and the Purchaser shall not be varied except in writing by the Company.
15. MANIFEST DISCREPANCIES AND ERRORS – Where the Company has executed a written contract for the sale of the goods, in the case of any manifest discrepancy between the express terms of that contract and these terms and conditions, that contract shall prevail to the extent of any inconsistency. The Company reserves the right to correct clerical errors in quotations, acknowledgements, orders, invoices or other documents relating to the goods or the agreement between the Company and the Purchaser.
16. PATENTS – Where the Company has followed a design or instruction furnished or given by the Purchaser or any person, company or other entity on behalf of or at the request of the Purchaser, the Purchaser indemnifies the Company and keeps the Company indemnified against all damages penalties costs and expenses to which the Company may become liable by reason of any work being required to be done in accordance with those instructions involving an infringement of any patent trade mark, registered design, copyright or common law right.
17. LICENCES -All goods are sold on the understanding that all licences and permits under all relevant statutes ordinances rules and regulations have been obtained by the Purchaser.
18. SPECIAL ORDERS – The Purchaser warrants as a fundamental condition of its agreement with the Company that all drawings and specifications and other design information supplied by it to the Company are accurate in all respects. Goods manufactured to special order of the Purchaser shall in no circumstances be returnable to the Company nor shall the Purchaser be entitled to claim any rebate or refund of the price thereof notwithstanding that the same may not comply precisely with the Purchaser’s specification.
19. SUBCONTRACTING – The Company reserves the right to sub-contract the manufacture and or supply of any part of the goods quoted or any materials to be supplied.
20. COMMISSIONING AND INSTALLATION – Commissioning and installation are quoted separately on an individual basis.
21. WAIVER -Failure by the Company to insist upon strict performance of any term or condition shall not be construed as a waiver thereof or of any rights the Company may have and shall not be construed as a waiver of any subsequent breach of any term or condition.
22. NOTICES – Notices to the Company shall be transmitted by prepaid registered mail to the address stated on the Company’s invoice or to the registered office of the Company and marked for the attention “Company Secretary”. No notice or payment transmitted to the Company shall be deemed to have been given or made until it is actually received at such address.
23. LEGAL JURISDICTION – The agreement between the Company and the Purchaser shall be governed by the laws of the State of New South Wales (excluding the whole of the United Nations Convention on Contracts for the International Sale of Goods, where it would otherwise have applied) notwithstanding the place in which the goods or any of them are to be delivered. The Purchaser submits to the exclusive jurisdiction of the Courts of the State of New South Wales including all courts of appeal therefrom.
24. DISCLAIMERS – The Company does not hold itself out as a designer of pipe systems or as a consultant in relation to their use. All advice and information contained in the Company’s published literature and given by the Company’s staff is compiled from the best information available to the Company, but the Company accepts no responsibility whatsoever for its accuracy or for any results which may be obtained by the Purchaser. If the Purchaser relies upon any such advice or information he does so entirely at his own risk and the Company will not be liable for any loss or damage or consequential loss thereby suffered notwithstanding any want of care on the part of the Company or its staff in compiling or giving any advice or information.
25. PURPORTED VARIATION OR CANCELLATION BY PURCHASER – If any Purchaser cancels purports to cancel, vary or suspend any order or offer, the Purchaser shall compensate and indemnify the Company for all its costs, losses and expenses incurred, suffered or anticipated including, but not limited to, loss of gross profits.
26. TERMINATION – If the Purchaser fails to make any payment promptly as required by these terms and conditions or specifically agreed by the Company, or otherwise tails to carry out the terms of the agreement between the Purchaser and the Company, or the Purchaser becomes insolvent or commits any act of bankruptcy, or stops payments of its debts, or calls a meeting of or enters into any composition with or makes any assignment for the benefit of its creditors or, being a company, has a receiver, receiver and manager, official manager or provisional liquidator appointed to its undertaking or assets or any part thereof, or a petition for the winding up of the Purchaser is presented or any resolution is passed for the winding up of the Purchaser, or the Purchaser breaches or commits any default under any mortgage, charge or other encumbrance by which it is bound or if any mortgagee, chargee or other encumbrancee of the Purchaser becomes entitled to enforce a mortgage, charge or other encumbrance, or the Purchaser fails to pay promptly any judgement debt, or the Purchaser defaults under any agreement with the Company or under any other agreement, the Company may at its discretion and notwithstanding any waiver of any default or failure to enforce any right and without prejudice to its other rights under these terms and conditions or otherwise, forthwith terminate its agreement with the Purchaser or any unfulfilled part thereof or make partial deliveries or require payment in cash before or on delivery of any goods, notwithstanding the terms of payments specified. In the event of termination or suspension as aforesaid, the Company shall not be liable for any loss, damages, costs or expenses of the Purchaser or of any other person howsoever arising from that cancellation, termination or suspension.