TERMS AND CONDITIONS OF SALE - REHAU PTY LTD
CONDITIONS OF SALE
1. INTERPRETATION
In these conditions of sale:
1.1 “Buyer” means the purchaser of the Goods.
1.2 “Conditions” means these conditions of sale.
1.3 “Goods” means the products and, if any, services provided by the Seller to the Buyer from time to time.
1.4 "Goods and Services Tax" means GST as defined in the A New Tax System (Goods and Services) Act 1999 (Cth).
1.5 "Intellectual Property" means any designs, drawings, dies, tools, patterns, or other specifications unique to the Seller in relation to the Goods.
1.6 "Security Interest" has the same meaning as set out in the Personal Property Securities Act 2009 (Cth).
1.7 “Seller” means REHAU Pty Limited (ACN 001 298 577), which is the seller of the Goods.
1.8 Australian Consumer Law. Under Schedule 2 the Competition and Consumer Act 2010 (Cth), being the Australian Consumer Law, consumers have certain rights which cannot be excluded, including guarantees as to the acceptable quality and fitness for purpose of goods and services. Noting 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 Australian Consumer Law) and which by law cannot be excluded, restricted or modified.
2. GENERAL
2.1 These Conditions may be amended, updated or varied by the Seller from time to time.
2.2 In the event these Conditions are amended, updated or varied, the Seller will publish the amended, updated or varied Conditions on the website of the Seller and the amended, updated or varied Conditions will apply to all further orders placed with the Seller by the Buyer.
3. TERMS OF SALE
3.1 Entire Agreement. The Goods sold by the Seller shall be subject to these Conditions which together with the order confirmation issued by Seller or the purchase order issued by the Buyer and accepted by Seller (“Purchase Order”) (if order confirmation is not issued) constitute the entire agreement (“Contract”) governing the Goods supply between the Seller and the Buyer, and prevail over all statements, representations, catalogues, illustrations, marketing materials or communications of any kind whatsoever relevant to the Good supply contemplated thereunder. The parties agrees that these Conditions apply to each Contact/Purchase Order issued by Buyer.
3.2 Variation. Subject to clause 2, no variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
3.3 Buyer’s Conditions. No conditions submitted or referred to by the Buyer (including any standard terms and conditions of purchase) whether in offer acceptance, Purchase Order, or elsewhere shall form part of the agreement between Seller and Buyer unless otherwise agreed in writing by the Seller, and to the extent that any conditions submitted or referred to by the Buyer would otherwise form part of the agreement then the same shall be deemed to be waived.
3.4 Error. Any typographical, clerical or other error or omission or any inconsistency in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall to subject to correction without any liability on the part of the Seller.
3.5 Goods Description. All Goods to be supplied by the Seller to the Buyer are as described on the Purchase Order agreed by the Seller and the Buyer and the description on such Purchase Order modified as so agreed prevails over all other descriptions including any specification or enquiry of the Buyer.
4. SELLER’S QUOTATIONS/PRICES
4.1 Quotation Valid Period. Unless withdrawn earlier, the Seller’s quotations are open for acceptance within the period stated on the quotation documentation or, if no period is stated, within sixty (60) days of the quote date.
4.2 GST. Unless otherwise stated in writing Goods and Services Tax (GST) will be added to all prices quoted by the Seller.
4.3 Price on Delivery. The Goods are supplied at the Seller’s price (“Price”) ruling at the date of receipt of the purchase order by the seller or confirmed by the seller.
4.4 The Seller reserves the right to make any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract. Any such alterations to the price of Goods not yet delivered will be charged or credited to the Buyer’s account, depending on whether the variation increases or decreases the price
4.5 Freight. In addition, if Goods are sold on DAP or CFR terms, any increase in the rate of freight or any other expenses of carriage or of insurance between the date of the Purchase Order and the date of dispatch of the Goods shall be paid by the Buyer without any right of cancellation. The Buyer acknowledges such variations are beyond the control of the Seller.
4.6 Special Packing. Notwithstanding anything else herein, the cost of any special packing reasonably required for the safe delivery or storage of the Goods is at the Buyer’s expense and not included in the Seller’s quotation.
5. PAYMENT
5.1 Payment. Payments shall be as per the payment terms agreed at the time of setting up the account or placing the order. If no payment terms are agreed, then the full purchase price in relation to Goods, including GST, must be paid in full prior to the dispatch of the Goods to the Buyer
5.2 Overdue Payment. If payment for the Goods is not made in accordance with clause 5.1 above, the Buyer agrees to pay interest on all overdue amounts, at a rate of 10% p.a. calculated daily from the date of the Seller’s invoice for payment up until and including when the outstanding balance is paid.
5.3 Interest Rate. The Seller is at liberty to change the rate of interest referred to in clause 5.2 at any time and on as many occasions as it determines, so long as the Buyer is given written notice of any such variation (“the new interest rate”). The new interest rate shall then apply to any subsequent orders placed with the Seller by the Buyer.
5.4 No Further Delivery. In the event of the Buyer failing to fulfil any terms of payment agreed with the Seller or if the Seller at any time has any reasonable doubts as to the solvency of the Buyer or the Buyer’s ability to make payment for the Goods, the Seller may refuse to make any further delivery of Goods under the Contract or any other contract, unless it receives payment in full for the overdue balance or security for payment satisfactory to the Seller, without prejudice to any other rights of the Seller.
6. RETENTION OF TITLE AND SECURITY INTEREST
6.1 Title Remain with Seller, Property in and legal and beneficial ownership of the Goods shall remain with the Seller until the Buyer has made payment in full in cleared funds of the Contract Price of those Goods and any other money owing by the Buyer to the Seller, and pending such payment the Buyer:
(a) shall hold the Goods as fiduciary bailee and agent for the Seller;
(b) shall retain the Goods in a manner such that they are readily identifiable as the Seller’s property;
(c) shall not in any way deal with, or part with possession of, the Goods or part thereof or attempt to do so;
(d) shall not make any new object from the Goods, or mix or incorporate them into or with other Goods;
(e) shall handle and store the Goods with due care; and
(f) shall not use the Goods for any purpose whatsoever.
6.2 Default in Payment.
(a) Take Possession. If the Buyer defaults in payment of the Contract Price or any other money owing by the Buyer to the Seller, the Seller and its nominees shall have the right to enter the premises where the Goods are reasonably believed to be stored to take possession of all or any of the Goods, and for this purpose the Buyer grants, or must promptly cause to be granted, reasonable access rights to the relevant premises and the Seller shall be entitled to do all things required to obtain possession of the Goods.
(b) Disposal. Upon taking possession of Goods under this clause 6 the Seller shall thereafter be entitled to sell and dispose of them or any of them, either together or in parcels, at such time or times, and place or places, and either by public auction or private contract or partly by one and partly by the other, to any person or persons, for such price or prices as the Seller may deem proper or expedient, with power for the Seller to make any other terms and conditions in regard to such sale or sales as the Seller may think proper, without being answerable or accountable for any loss, diminution in price, costs or expenses occasioned by any such sale.
(c) Proceeds. The Seller shall be entitled to apply the net proceeds of sale in reduction of the money owing by the Buyer to the Seller (including that referred to in subparagraph (d)(iii) below), and shall pay any surplus to the Buyer.
(d) No Claim. If the Seller exercises any of these rights, the Buyer:
(i) will not have any claim whatsoever against the Seller for breach of contract or otherwise in respect of that exercise;
(ii) shall indemnify the Seller from and against any claim against the Seller arising out of its taking possession of the Goods; and
(iii) reimburse the Seller on demand in respect of the costs and expenses reasonably incurred by the Seller in exercising or attempting to exercise those rights including, without limitation, costs of taking possession, storage and transportation.
6.3 Proceeds. Despite clause 6.1, if the Buyer supplies any of the Goods to any person before all monies payable by the Buyer have been paid to the Seller:
(a) the Buyer shall hold the proceeds of that supply of the Goods on trust for and as agent for the Seller immediately when they are receivable or are received; and
(b) the Buyer must either pay the amount of the proceeds of supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Seller.
6.4 New Object. Notwithstanding clause 6.1, if the Buyer makes any new object from the Goods, or incorporates or mixes them into or with other Goods, before all monies payable by the Buyer have been paid to the Seller:
(a) those new or other Goods or objects will be held on trust for the Seller; and
(b) if those new or other Goods or objects are supplied by the Buyer to any other person, the Buyer shall hold the proceeds of that supply of the goods or objects on trust for and as agent for the Seller immediately when they are receivable or are received, and the Buyer must either pay the amount of the proceeds of supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or financial institution or deposit-taking institution as trustee for the Seller.
6.5 Security Interest. The Buyer acknowledges that by agreeing to these Conditions, the Buyer grants a Security Interest to the Seller in all Goods now or in the future supplied by the Seller to the Buyer (or to its account).
6.6 PPSA. The Buyer will, whether before or after Goods are supplied under these Conditions, do such acts and provide such information (which information the Buyer warrants to be complete, accurate and up to date in all respects) as in the opinion of the Seller (acting in its absolute discretion) may be required or desirable to enable the Seller to perfect under the Personal Property Securities Act 2009 (Cth) (as amended or replaced from time to time) (PPSA) the Security Interest created by these Conditions.
6.7 Section 115(1) of the PPSA. To the extent permitted by law the Buyer waives any right to receive a copy of a verification statement under the PPSA and agrees as to any contract between the Seller and the Buyer for the supply of Goods governed by these Conditions, to the extent permitted by law, to contract out of those sections listed in section 115(1) of the PPSA, except section 115(1)(g), to the intent that the Seller will preserve its right to seize collateral, and the Buyer agrees to waive its rights referred to in section 115(1).
6.8 Action under PPSA. The Buyer agrees to pay the costs, charges and expenses of and incidental to the need for, or desirability of registration of, a financing statement or financing change statement or any action taken by the Seller to comply with the PPSA or to protect its position under the PPSA. The Buyer agrees to pay any costs incurred by the Seller, including, but not limited to, legal costs on a solicitor-own client basis, arising from any disputes or negotiations with third parties claiming an interest in any Goods supplied by the Seller.
7. DELIVERY
7.1 Place of Delivery. The place for delivery of the Goods shall be the premises specified by the Buyer in its Contract/Purchase Order and accepted by the Seller.
7.2 Time for Delivery. Time for delivery shall be agreed by the parties. If no time for delivery is specified in writing by the Seller, then the Buyer shall be bound to accept the Goods when they are ready for delivery as reasonably notified by the Seller.
7.3 Late Delivery. Buyer shall place Contract/purchase orders for Goods with Seller with minimum quantity indicated by Seller with lead time requested by Seller. Seller shall notify Buyer in writing of its acceptance or rejection of firm orders within fifteen (15) days of receipt of such contract/purchase orders. If Seller does not notify Buyer within such fifteen (15) day period, Seller shall be deemed to have rejected the order. Unless otherwise expressly agreed to, any dates quoted or agreed for delivery of the Goods are approximate only and time for delivery shall not be of the essence. The Seller is not liable for any loss (including consequential loss), damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of the Goods unless it is solely caused by the Seller. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
7.4 Force Majeure. In the event of delivery being wholly or partly suspended or delayed by force majeure events including but not limited to act of God, fire, accident, epidemics, pandemic, outbreak of diseases, health emergencies, act of government, lock down, riot, civil commotion hostilities, war, strikes, lock-outs, import and/or export restrictions, emergency regulations, changes in law, breakdown of plant, non-delivery of raw material or any other event of any kind whatsoever which is beyond the control of the Seller, the Seller shall inform the Buyer of such event accordingly, and to the extent impacted by such force majeure events, the Seller shall be exempted from any liabilities of failure to perform duties under the Contract/Purchase Order including failure to deliver the Goods per the Contract/Purchase Order. The Buyer shall have no right of cancellation of the Contract/Purchase Order but shall accept delivery of the Goods at such time after such suspension or delay as the Seller is reasonably able to deliver the Goods, having regard to the Seller commitments to other customers. If, however, the delivery of the Goods is suspended or delayed for a period exceeding six (6) months from any delivery date specified in writing to the Buyer then, unless otherwise agreed in writing, so much of the Contract/Purchase Order as relates to those Goods shall automatically be rescinded and any monies paid by the Buyer to the Seller for those Goods shall, subject to condition 7.5, be refunded. Any rescission pursuant to this clause shall only be for that part of the Contract/Purchase Order that relates to the suspended or delayed Goods, and the Contract shall remain in force with respect to all other Goods.
7.5 Buyer’s Payment. Should the Contract/Purchase Order be rescinded pursuant to clause 7.4, then the Seller shall be entitled to retain any monies paid by the Buyer with respect to those suspended or delayed Goods and apply those monies towards payment of any other amounts owing by the Buyer to the Seller. If this occurs, then the Seller will inform the Buyer in writing of how these monies were used in paying any other amounts owing. The Buyer has no right to object to monies being set off against other amounts duly owing in this manner.
7.6 Deliver Quantity. The Seller shall have the right to deliver up to 10% more or less than the quantity of the Goods stated in the Buyer’s Contract/Purchase Order and the price payable by the Buyer shall be increased or decreased pro rata.
7.7 Deliver in Instalment. The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement in the Buyer’s Contract/Purchase Order to the effect that the Buyer will not take delivery by instalments.
7.8 Defective Instalment. If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
(a) it is not a repudiation or breach of the contract of sale formed by these Conditions; and
(b) the defective instalment is a severable breach that gives rise only to a claim for compensation.
8. LOSS OR DAMAGE IN TRANSIT
8.1 Buyer’s Risk. Unless otherwise agreed in writing, all Goods ordered by Buyer shall be at the Buyer’s risk from the time of dispatch, the Buyer agrees to insure or have the insurance in place for the Goods shipped under the Contract against any damage and/or loss. The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person.
8.2 Assistance. The Seller must provide the Buyer with such assistance as may be reasonably necessary to press claims on carriers so long as the Buyer:
(a) has notified the Seller and the carriers in writing immediately after any loss or damage is discovered on receipt of Goods; and
(b) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the Goods.
9. DRAWINGS, SPECIFICATIONS AND PARTICULARS
9.1 All original designs, specifications, drawings, and particulars of weights and dimensions (“the Description‟) submitted to the Buyer are approximate only and any deviation from the description within the agreed or reasonable tolerance does not form grounds for any claim against the Seller.
9.2 Confidentiality. The Description submitted by the Seller to the Buyer must not be disclosed to third parties or used for purpose other than purchase Goods from Seller.
9.3 Buyer’s Direction. Where Goods are manufactured and/or supplied by the Seller for/to the Buyer in accordance with directions, instructions, drawings and/or specifications supplied by the Buyer, the Buyer agrees to defend, protect and completely indemnify the Seller against any claim, loss, damage or expense arising by reason of the design, manufacture, production and use of the Goods, including all claims for actual and alleged infringement of patents, trade marks, copyright, design, confidential information or similar protection whether granted by the Commonwealth of Australia or any foreign state or the common law.
10. WARRANTY
This clause 10 is subject to clause 1.8.
10.1 Warranty. Subject to the condition set out below, the Seller warrants that the Goods will correspond in all material respects with Seller’s specifications at the time of delivery and will be free from any material defects in materials and workmanship during the warranty period. Unless otherwise agreed in writing, the warranty period shall be six (6) months from the date of delivery unless the parties otherwise agreed. This warranty is in addition to the rights and remedies available under the Australian Consumer Law in the event the Australian Consumer Law is applicable.
Warranty Condition. Subject to clause 1.8, the above warranty given by the Seller is subject to the following conditions:
(1) Warranty Exclusion. This warranty is subject to that the Goods are stored, installed and used pursuant to the corresponding technical delivery specifications/technical information on Seller’s website www.rehau.com/TI or https://www.myrehau.com. The Seller shall be under no liability in respect of any defects in the Goods arising from using on wrong application, improper installation, incorrect assembly, improper storage, fair wear and tear, wilful damage, negligence, abnormal conditions, Buyer’s further handling of the Goods including fabrication and installation, failure to follow the Seller’ instruction (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’ approval; Buyer shall indemnify Seller from any and all claims, actions, demands, damages, losses, costs, charges, recoveries, judgments, penalties, liabilities and expenses (including, but not limited to, costs of litigation and/or reasonable attorney fees), by third parties (Including Buyer's customers) arising out of, or in connection with the disputes between such third parties and Buyer which caused by Buyer's failure or negligence in performance or other reasons contributable by Buyer.
(2) No Liability. The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total Price for the Goods has not been paid for payment;
(3) Manufacturer Warranty. The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
(4) Tolerance. The warranty is subject to the dimension tolerance set forth in Seller’s technical delivery specifications or Australian industry standards or other applicable standards.
(5) Performance Tolerance. The above warranty is subject to performance tolerance. Any performance figures given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically represented by the Seller to the Buyer in writing. Any such written representation is subject to the recognised tolerances applicable to such figures.
(6) Commercial Variations. Normal commercial variations in terms of reject rates, finish, weight and colour shall not constitute grounds for claims, and no condition, warranty or stipulation is made in respect of the colour stability of plastics. The illustrations, masses and weights appearing in the Seller’ product lists, technical delivery specifications, factory standards, quotations and order confirmations are only approximate. Discrepancies in terms of mass, weight, number of pieces and quality are permissible within the bounds of normal tolerances or the relevant standards.
10.3 Legal Exclusion. Subject always to clause 1.8 and except as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.4 Exclude Liabilities. The Buyer agrees, wherever legally possible to limit and (if possible) exclude liability under the Competition and Consumer Act 2010 (Cth) when they supply to a third party any Goods supplied to them by the Seller.
10.5 Shortage. Any claim by the Buyer which relates to the quantity of the Goods delivered shall be notified to the Seller in writing within five (5) days from the date of delivery and if the Buyer does not notify the Seller accordingly the quantity stated to be delivered by the Seller shall be deemed to be the quantity actually delivered.
10.6 Claim Process. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the specification shall be notified to the Seller in writing within five (5) days from the date of delivery (whether or not delivery is refused by the Buyer) or where the defect or failure was not apparent on reasonable inspection, within eight (8) days after discovery of the defect or failure. If delivery is accepted, and no defect notice is issued to Seller within the aforesaid timeline, the Buyer shall not be entitled to reject the Goods subsequently, and the Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract. Any claim must be submitted to the Seller together with the description of the quality issues, proof of purchase including date of purchase, evidence of the Products defects, photos of defective Products and other related supporting documents and may be sent to the Seller by post or email to the addresses set out below within the warranty period. Seller will conduct investigation within 60 days and respond to the Buyer accordingly. Each party will bear its own costs incurred in making and processing a claim.
Email: claims.au@rehau.com
Address: REHAU Pty Limited,
Quad1, Level 1, 8 Parkview Drive, Sydney Olympic Park, NSW 2127, Australia
General Line: 1300 768033 (within Australia) +61 2 8741 4500 (overseas)
Fax: 1300 760665
10.7 Remedies. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall (subject to clause 10.8) be entitled to limit its liability to, at its discretion and election:
(a) the repair or replacement or supply of equivalent the Goods (or the part in question) free of charge; or
(b) a refund to the Buyer the price of replacing or acquiring equivalent Goods or having the Goods repair;
and thereafter, to the extent permitted by law, the Seller shall have no further liability to the Buyer.
10.8 Consumer Warranties. To the extent that the Buyer is a “consumer” for the purposes of the Australian Consumer Law, this clause 10.8 applies:
(a) The Seller’s Goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.
For major failures with the Goods, the Buyer is entitled to choose a refund or replacement.
For major failures with the service, Buyer is entitled:
to cancel the service contract with Seller; and
to a refund for the unused portion, or to compensation for its reduced value.
(b) If a failure with the Goods or a service does not amount to a major failure, the Buyer is entitled to have the failure rectified in a reasonable time. If this is not done the Buyer is entitled to a refund for the Goods and to cancel the contract for the service and obtain a refund of any unused portion. The Buyer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or service.
10.9 Any measures undertaken by the Seller in investigating a claim or damage mitigation shall not constitute recognition or admission of liability. Seller reserves all rights to engage the services of qualified companies to perform any necessary remedial measures.
11. LIMITATION OF LIABILITY
11.1 Suitable for Purpose. In placing an order for the Goods or any item thereof, the Buyer warrants that they accept or have tested Goods of that description and specification and that such Goods are suitable for the purpose for which the Buyer requires them.
11.2 Design Defect. Subject to clause 1.8 and 10.1, the Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any Goods supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing.
11.3 No Representation. The Goods supply shall be governed by these Conditions, all other express and implied warranties, representations, promises, conditions or statements made by the Seller or any person who at law is deemed to be an agent of the Seller regarding the Goods, including (without limiting the generality of the foregoing) their merchantability, description, quality, suitability or fitness for any purpose, design, assembly, installation, materials or workmanship or otherwise, are expressly excluded. In no circumstances shall the Seller be bound by or in any way liable for any representation made or any information or advice given to the Buyer or to any other person whatsoever by the Seller or by any person who is or who is deemed by law to be an agent for the Seller, whether such representation is made or information or advice is pursuance of this or any other Contract in any other way whatsoever.
11.4 Catalogue. The Seller shall in no circumstances be bound by or liable for any description, information or illustration contained in any catalogue, price list, brochure, leaflet or other document of any kind and nothing contained in any such document shall form part of this or any Contract between the Seller and the Buyer.
11.5 Damages. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods by Buyer, Buyer’s customers, end users and other parties.
11.6 Except in respect of death or personal injury caused by the Seller’s negligence, or liability under and subject to the competition and consumer act 2010 (cth), the Seller shall not be liable to the buyer for any special, incidental, or consequential loss or damages, including but not limited to loss of profits or revenue, loss of business or opportunity, loss of use of products or other property/equipment, costs of substitute products or other parts, downtime costs, or claims of purchase or otherwise, other cost, expenses or other claims, or any consequential compensation whatsoever (whether as a result of breach of contract or warranty, or caused by alleged negligence of the Seller, its employees or agents or by reason of any representation, or any implied warranty, condition or any other term, or any duty at common law, or, under the express terms of the contract or otherwise) which arise out of or in connection with the supply of goods or their use or resale by the Buyer, except as expressly provided in these conditions.
In any event Seller’s aggregate liability to Buyer for any and all direct, special, indirect, exemplary, punitive, incidental or consequential damages connected with or resulting from the Goods or services provided or to be provided by Seller, from performance or non-performance of this contract or any other documents executed in connection thereto, or arising at law or in any other way arising, including without limitation, damages or claims in the nature of removal costs, restoration expenses, field repairs, loss of revenue, loss of income or profits, loss of use, loss of opportunity, loss of business, or cost of capital, shall not exceed twenty percent (20%) of the total annual turnover of the Goods in question sold by Seller to Buyer.
The provisions of this Clause 11 apply to the fullest extent permitted by law.
12. RETURNED GOODS
12.1 No Return. The Seller does not accept the return of any Goods, or give any refund, credit or exchange in the event that the Buyer:
(a) changes their mind;
(b) decides they do not like the Goods;
(c) decides they have no use for the Goods;
(d) has concluded they can buy the Goods at a cheaper price elsewhere;
(e) examined the Goods before buying and ought to have seen an obvious fault or defect or had the defect drawn to their attention before buying; or
(f) damaged the Goods by unreasonable or unintended use.
12.2 Defective Goods. In the event that both parties agree the Goods are defective, the defective Goods can be returned to Seller. The Seller is entitled to ask for proof of purchase when defective Goods are returned, and if such a request is made, then the Buyer will furnish such information.
12.3 Further Disclaimer. To the fullest extent permitted by law, the Seller is not liable if:
(a) the Goods become unfit for a particular purpose after leaving the Seller’s control, or
(b) if it is unreasonable for the Buyer to rely on the Seller’s skill and judgement.
12.4 Return. The Buyer must return defective Goods within a reasonable period of time. If not, the Seller is under no obligation to accept the Goods.
12.5 Demonstration. The Seller may ask the Buyer to demonstrate that the problem with the Goods was/is not the Buyer’s fault, and if such a request is made, then the Buyer shall provide the requested demonstration.
13. SELLER’S PROPERTY
13.1 Equipment. Any dies, tools, patterns and other equipment (collectively known as “the equipment‟) used in the manufacture or production of the Goods, which the Seller makes or obtains in order to produce the Goods, shall unless otherwise stated, remain the Seller’s property. If the Seller does not use the equipment for a three (3) year period, then the Seller is entitled to dispose of that equipment.
13.2 Intellectual Property. The supply of Goods from the Seller to the Buyer does not constitute a transfer of any rights in the Intellectual Property, or any part thereof. The Buyer must not do anything which is inconsistent with, or in infringement of such Intellectual Property rights. The Seller does not warrant that the supply by it and the use of the Goods by the Buyer does not and will not infringe the intellectual property rights of any third party.
14. BUYER’S PROPERTY
14.1 Buyer’s Risk. Any property of the Buyer under the Seller’s possession, custody or control is completely at the Buyer’s risk in relation to loss or damage caused to the property.
14.2 Storage Charge. The Seller reserves the right to make a reasonable charge for storage if delivery instructions of Buyer’s property are not provided by the Buyer within fourteen (14) days of a request by the Seller for such instructions. Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.
15. CANCELLATION AND TERMINATION
15.1 No Cancellation. No order may be cancelled by the Buyer except with consent in writing and on terms which will indemnify the Seller against all losses.
15.2 Termination. The Seller shall be entitled to terminate this contract upon the happening of any of the following events:
(a) The Buyer’s failure to pay any sum due to the Seller;
(b) The Buyer’s breach of any other clause of these Conditions; and
(c) The Buyer suffering an execution to be levied on their goods.
(d) (Where the Buyer consist of one or more individuals), any such individual dying, entering into a composition or arrangement for the benefit of his creditors or having any order made in respect of him under any insolvency regulations or (Where the Buyer consist of a body corporate), the Buyer having a receiver, an administrative receiver or administrator appointed or going into liquidation whether voluntary or compulsory.
(e) The Buyer cease or threaten to cease to carry on their business.
(f) any other event occurs or circumstance arises, financial or otherwise, which, in the reasonable opinion of the Seller, is likely materially and adversely to affect the ability of the Buyer to observe any of its payment obligations to the Seller, and in any such event the Buyer shall be deemed to be in breach of its obligations under these Conditions.
15.3 Effect of Termination. In the event of termination, the Seller shall forthwith be discharged from any further performance of the Contract and the Buyer shall forthwith pay to the Seller:
(i) all sums accrued due under the Contract.
(ii) the full Price of all Goods manufactured and in a deliverable state but not delivered at the date of termination.
(iii) in respect of any Goods ordered but not yet manufactured or in a deliverable state at the date of termination, a sum equivalent to the aggregate of the cost and expenses incurred by the Seller in connection with or in contemplation of the manufacture of such Goods and the Seller’ gross profit which would have been realised on the completion of the sale of such Goods to the Buyer. Any deposit paid to the Seller may be used by the Seller to offset against any amount payable by the Buyer hereunder. Further the Buyer shall forthwith and at their own expense deliver up to the Seller all Goods in their possession or control in which title remains vested in the Seller.
16. CONFIDENTIALITY
16.1 Section 275(1). To the extent permitted by law, neither the Seller nor the Buyer will disclose information of the kind referred to in section 275(1) of the PPSA.
16.2 Buyer’s Duty. To the extent permitted by law, the Buyer will not authorise the disclosure of any information of the kind referred to in section 275(1) of the PPSA at any time.
17. SEVERABILITY
The whole or any part of a clause of these Conditions shall be capable of severance without affecting the rest of these Conditions. If any provision of these Conditions shall be held to be invalid, illegal, or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, that provision shall be deemed severed to the extent necessary to comply with such statute, regulation, ordinance, order, or rule, and the parties shall negotiate in good faith to arrive at an alternative replacement provision approximating the parties' original business objective. The remaining provisions hereof shall remain in effect. The Article, Section, and/or Paragraph headings herein are used for convenience of reference only and shall not be deemed a part of this contract for any purpose.
18. WAIVER
If the Seller elects not to exercise any of its rights arising as a result of a breach of these Conditions, that will not constitute a waiver of any rights of the Seller relating to any subsequent or other breach.
19. DISPUTE RESOLUTION
19.1 These Conditions shall be governed by the laws of New South Wales.
19.2 Dispute Notice. In the event of a dispute between the parties in relation to these Conditions or otherwise, the disputing party must send a notification to the other party outlining the nature of the dispute ("the Dispute Notice").
19.3 The parties shall endeavour to resolve the dispute between themselves by negotiation.
19.4 Mediation. If the dispute has not been resolved within thirty (30) days of receipt of the "Dispute Notice", the parties agree to apply to the Chair of the Resolution Institute to appoint a mediator.
19.5 Litigation. If the mediation is not successful in resolving the dispute, the parties may seek to take further action by commencing litigation proceedings in a court of competent jurisdiction. The parties irrevocably submit to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with these Conditions and the Contract.