TERMS AND CONDITIONS OF SALE
1. General – any order placed by a purchaser is deemed to be an order incorporating these terms and conditions notwithstanding any inconsistencies which may be introduced in the purchaser’s order or acceptance, unless expressly agreed to by Funktion Australia Pty Ltd (the “Company”) in writing. All prices are expressed in Australian dollars and unless expressly stated
(a) Prices quoted are exclusive of sales tax which, if applicable, will be to the purchaser’s account;
(b) Prices quoted are ex-works Funktion Australia Pty Ltd, VIC Australia.
(c) Prices quoted are exclusive of any GST (as that term is defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended (“GST Act”)). If the goods and/or services being the subject of the quotation are a taxable supply for the purpose of the GST Act, in addition to paying for the goods and services, the purchaser must pay to the company the GST payable in respect of the taxable supply.
A quotation is not an offer by the Company to sell and may be withdrawn without any notice and any order given in respect of a quotation is not binding on the Company until accepted by the Company in writing.
3. Orders – orders accepted by the Company may not be cancelled or altered in whole or in part without the Company’s written consent. The Company may decline, by written notice to the purchaser, any order in whole or in part, at any time prior to delivery of the goods or performance of the service, in which case the Company will be under no obligation in respect of the order.
4. Terms of Payment – Subject to the approval of the Company’s Credit Department, terms of payment will be net cash 7 days or 30 days from date of invoice PROVIDED THAT the Company reserves the right to vary the terms of payment and to require payment in cash in full prior to delivery should the credit worthiness of the purchaser at any time become, in the Company’s opinion unsatisfactory.
5. Claims – any claim by the purchaser for short or wrongful delivery of the goods MUST BE NOTIFIED TO THE COMPANY IN WRITING WITHIN 14 DAYS after delivery of the goods to the purchaser and any claim which the purchaser does not notify within the time aforesaid (time being of the essence) shall be deemed to have been absolutely waived.
6. Description – any description of the goods is given by way of identification only and the use of such description shall not constitute the contract a sale by description.
7. Representation – the purchaser acknowledges that neither the Company nor any person purporting to act on its behalf has made any representation in relation to the goods or services. In particular, the purchaser acknowledges that it does not rely on the skill and judgement of the Company in supplying goods which are fit for a particular purpose, and that it will ensure that any goods supplied to it by the Company are in accordance with its order.
8. Implied Terms – it is hereby acknowledged by the Company that, under applicable State, Territory and Commonwealth law, certain conditions and warranties may be implied in the contract between the Company and the purchaser and rights and remedies conferred upon the purchaser and other parties in relation to goods or services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”). The limitations below are subject to these Non-excludable Rights.
Subject to the above, the Company disclaims all conditions and warranties expressed or implied and all rights and remedies conferred on the purchaser or other parties by statute the common law equity trade custom or usage or otherwise howsoever and all such conditions and warranties, and all such rights and
remedies are hereby expressly excluded other than any non-excludable Rights. Where so permitted, the liability of the Company for a breach of a non-excludable Right is limited, at the Company’s option, in the case of goods, to the replacement or repair of the goods or the supply of equivalent goods or the cost of replacing or repairing the goods or of acquiring equivalent goods and, in the case of services, to the supplying of the services again or the payment of the cost of having the services supplied again.
9. Indirect Loss – subject to clause 8, in no event shall the Company be liable (whether before or after discharge of the contract or otherwise) for any loss or damage to the purchaser as the user arising from or caused or contributed to by negligence of the Company, its servants or agents, nor shall the Company be liable for special, incidental, indirect or consequential loss or damage suffered by the purchaser as user as a result of a breach by the Company of its obligations or otherwise including, but not limited to, economic or moral loss, loss of profits or revenue or costs arising from such breach.
10. Indemnity – Subject to clause 8, the purchaser shall indemnify and keep indemnified and hold the Company harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Company, and from and against all actions, proceedings, claims or demands made against the Company, arising from any of the following:
(a) as a result of the purchaser’s failure to:
(i) ensure that any safety markings on the goods are adequately displayed; (ii) comply with any legislation as to the labeling or marking of goods; (iii) take any other reasonable precautions either to bring to the attention of any potential users of the goods any dangers associated with goods, or to detect any matters in relation to which the Company may become liable, including, without limitation, liability under Part VA of the Trade Practices Act; or (iv) otherwise comply with any laws, rules, standards or regulations applicable in relation to the goods or the use of the goods.
(b) as a result of any other negligence or other breach of duty by the purchaser; or
(c) as a result of any compliance or adherence by the Company with any instructions of the purchaser in relation to the goods or their manner of fabrication.
12. Delivery – unless otherwise expressly agreed by the Company in writing the goods will be delivered ex-warehouse. Any time quoted for delivery is an estimate only and the Company shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to deliver or delay in delivery arising from any circumstances of whatsoever nature including, but without limiting the generality of the foregoing, fire flood explosion strike lock-out or other industrial act or dispute or the break-down of or accident to plant unavailability or shortage of raw materials labour power supplies or transport facilities or failure or inability to obtain licences or act of God or any order or direction of any local State or federal Government or Government authority or instrumentality. If the Company determines that it is or may be unable to deliver within a reasonable time or at all the contract may be cancelled by the Company. In the event of cancellation the purchaser shall have no claim against the Company for any damage loss cost or expense whatsoever. The purchaser shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery.
Delivery shall be deemed to have been effected upon goods being made available for collection at the Company’s premises. If the Company agrees to arrange for the dispatch of the Products to the Purchaser, the Purchaser acknowledges the Company may choose the carrier and all costs of delivery shall be paid by the Purchaser.
A carrier’s signed docket shall be conclusive evidence that the Product was dispatched in good condition. The Company is not responsible for any loss or damage to Products in transit.
13. Property and Risk –
(a) Property in the goods shall not pass from the Company to the purchaser until the purchaser has paid all monies outstanding by the purchaser to the Company on any account in full.
(b) The risk of loss or of damage to the goods shall pass to the purchaser on dispatch.
(c) The purchaser agrees to store the goods separately and mark them so as to render them identifiable as being or being made from or with goods which are the property of the Company.
The power of sale hereby conferred on the purchaser shall automatically cease if a receiver or receiver and manager is appointed over any of the purchaser’s assets or if a winding up order is made against or a resolution is passed for the winding up of the purchaser or if the Company at any time revokes the power of sale by notice to the purchaser.
14. Instalments – the Company reserves the right to deliver by installments and each installment shall be deemed to be sold under a separate contract. Failure of the Company to deliver any installment shall not entitle the purchaser to cancel the balance of the order. In the event of the purchaser making default in respect of any installments, the Company may elect to treat the default as a beach of contract relating to each other installment.
15. Default in Payment – the Company will treat any default by the purchaser in payment of any monies due to the Company as a breach of these terms and conditions.
16. Waiver – failure by the Company to insist upon strict performance of any term warranty or condition of the contract shall not be deemed as a waiver thereof or of any rights the Company may have and no express waiver shall be deemed a waiver of any subsequent breach of any term warranty and condition.
17. Purchaser’s Acknowledgement – the purchaser acknowledges that the goods are not of a kind ordinarily acquired for private use or consumption.
18. Intellectual Property Rights – the purchaser warrants that any design or instruction furnished to the Company shall not be such as will cause the Company to infringe any intellectual property rights (patents, registered designs, trademarks, copyright, confidential information and the like) in the execution of the purchaser’s order and it is specifically agreed that the sale and purchase of the goods does not confer on the purchaser any license or rights under any intellectual property rights which are the property of the Company.
19. Subcontracting – the Company reserves the right to subcontract the production manufacture or supply of the whole or any part of the goods or of any materials or services to be supplied.
20. Notices – any notice to be given by the purchaser to the Company shall be sent to the Company’s address. No notice shall be deemed to have been given until it is actually received at such address.
21. Severance – it is agreed that if any provision of these terms and conditions should be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision hereof, and each such other provision shall remain in full force and effect.
22. Governing Law – contracts shall be governed by and construed in accordance with the laws of VIC, Australia.