1.
EXCLUSION
OF BUYER’S TERMS
1.1 It is expressly acknowledged and agreed that these terms operate to the
exclusion of all and any terms and conditions issued by the Buyer whether
contained in purchase orders or otherwise and whether issued before or after the
date these conditions of sale come into effect.
2.
ORDERS
AND PERFORMANCE
2.1 The
Company may accept or refuse any order for Equipment at its absolute discretion
and may make it’s acceptance of an order conditioned upon it receiving a
satisfactory credit assessment of the Buyer.
2.2 Orders
must be in writing and either mailed, couriered or faxed or emailed to the
company.
2.3 The
Company will use its best endeavours to fulfil accepted orders and comply with
any requested or estimated date for installation (minimum lead time generally
21 days) but time will not be of the essence in this regard and if the
Company’s ability to fulfil an accepted order is affected by circumstances or
events beyond its control the Company may:
(a) extend
the date for installation;
(b) with
the Buyer’s approval, alter the specifications for the Equipment to allow the
substitution of equivalent equipment; or
(c) Cancel
the order without liability for breach.
2.4 The
Company’s policy is one of constant improvement and therefore changes and specifications
and performance data may be made by the Company without notice and without
incurring liability to the Buyer.
3.
QUALITY
3.1 Subject
to these terms the Company warrants to the Buyer that all Equipment
manufactured or supplied by the Company. Will be free from defects due to
faulty factory materials or workmanship for a period of 12 months from the date
of installation and will comply with any specification agreed for them.
4
PRICE
4.1 Prices
charged for Equipment will be according to a Current Quotation for that
Equipment. Otherwise they will be determined by the Company be reference to
its standard prices in effect at the date of installation (whether notified by
the Buyer or not and regardless of any prices contained in the order). The
Company will use its best endeavours to notify the Buyer of price changes but
bears no liability in this regard.
4.2 Every
quotation provided by the Company is an invitation to treat only and is not an
offer nor, unless specifically indicated, do prices in quotations include insurance,
special packing, installation or tax.4.3 The
prices contained in quotation are based on labour, material, storage and
transport costs as at the date of this quotation. 4.4 The
prices are based on all installation, labour and services being performed during
regular working days. The Buyer will bear the additional cost incurred by the
Company carrying out the installation or servicing outside the regular working
hours of regular working days at the Buyer’s request.4.5
(a) “Rise and fall” is applicable 31 days after date of quotation and is based on
NCAP-2 for which the base date is date of quotation.(b) No
cash retentions are allowable.(c) Monthly
progress payments are applicable according to the level of work performed and
costs incurred.4.6 The
Buyer will be liable for all applicable taxes to the extent that they are not
already included in the price.4.7 Unless
otherwise specified GST is not included in the price.5
INSTALLATION
OF SPECIAL TESTS
5.1 The
Buyer agrees that the Company’s staff will be given a safe and fit place to
work and park necessary vehicles and that the Company will not be liable for
any delay in the installation of the Equipment caused by the Buyer’s failure to
comply with this condition.
5.2 Special
Tests may be carried out as follows:(a) Commissioned
or witnessed tests in addition to the standard works test will only be carried
out at the request of and cost to the Buyer.(b) The
Company will give the Buyer seven days written notice of the time and place at
which the extra tests are to be carried out. The test will proceed unless
agreed otherwise at the time and place notified to the Buyer.
6
PAYMENT
6.1 Terms
of payment by the Buyer will be by net cash in exchange for Equipment; for
Buyers fulfilling the Company’s credit requirements – net cash within 14 days;
or otherwise as agreed in writing.
6.2 The
Company will provide an invoice to the Buyer, the buyer will pay the invoice in full to
the Company within the time specified above or on the invoice.
6.3 All
payments to the Company will be made without set-off, deduction or counterclaim.
6.4 If
the Buyer fails to pay the invoice in full to the Company when due, the Company
will be entitled (without prejudice to any other right or remedy it may have)
to:(a) cancel
or suspend any further installation for the Buyer under any order; and
(b) Charge
the Buyer interest on the overdue amount at the rate that would be payable by
the Company to its Bankers for overdraft accommodation from date of invoice to
the date of full and final payment (irrespective of whether the date of payment
is before or after any judgement or award in respect of the overdue amount). 7
RETURN
OF EQUIPMENT
7.1 If
the Buyer wishes to return any of the Equipment the Buyer must;
(a) arrange
and pay for the costs of re-delivery of the Equipment to the Company’s store;
(b) pay
the Company a restocking charge of 30% of the invoice price of the Equipment;
(c) return
the Equipment to the Company within thirty days of its delivery by the Company
to the Buyer; and(d) Ensure
that the Equipment is completely free from defects and is clean and of sellable
quality.7.2 If
Equipment is returned in accordance with clause 7.1 the Company will issue a
credit note to the Buyer at the time of return for such part of the purchase
price as relates to the Equipment returned, less the 30% restocking charge (and
if the Company has arranged delivery of the returned Equipment at the request
of and is agent for the Buyer, less the costs of such delivery).
7.3 Any custom equipment will not be accepted for return
8
INSURANCE,
RISK AND PROPERTY
8.1 Unless
otherwise agreed, Equipment is not insured by the Company.
8.2 The
risk of damage, loss or deterioration to any Equipment will pass to the Buyer
either on installation or on the expiry of 14 days from the date of
notification by the Company to the Buyer that the Equipment is ready for
collection.8.3 Not
withstanding that risk in the Equipment may pass to the Buyer, property in and
title to the Equipment will not pass to the Buyer until that Equipment and all
other amounts owed to the Company by the Buyer (regardless of any credit
period) have been paid for in full and until then;(a) the
Buyer will hold the Equipment as fiduciary and agent for the Company;
(b) the
Equipment must be stored separate and in a manner enabling them to be
identified and cross-referenced to particular invoices and the Buyer
acknowledges that if it should mix the Equipment with other products or items
such that the Equipment is no longer separately identifiable then the Buyer and
Company will be owners in common of the new product;(c) the
Buyer may sell the Equipment in the ordinary course of its business as agent
for the Company and will hold the proceeds of sale in a separate account on
trust for the Company and account to the Company for those proceeds; and
(d) The
Company may require the Buyer to return the Equipment to it on demand and may
enter upon the premises of the Buyer to inspect or repossess the relevant
Equipment.8.4 The
Buyer will insure the Equipment against theft or any damage until it’s price
has been paid or until sale – whichever first occurs – and the Company will be
entitled to call for details of the insurance policy. If the Buyer does not
insure the Equipment or fails to supply details of its insurance policy the
Buyer will reimburse the Company for the cost of any insurance which the
Company may reasonably arrange in respect of Equipment supplied to the Buyer.
9
WARRANTIES
9.1 The
warranty in clause 3.1 does not apply in respect of defects specifically drawn
to the Buyer’s attention or defect arising from incorrect or negligent
handling, disregard of operating and/or maintenance instructions; overloading
or unsuitable operating conditions, defective civil or building work, lighting,
accident, neglect faulty erection or installation (unless carried out by the
Company); unauthorised repairs or alterations; acts of Gods or other causes
beyond the Company’s control.
9.2 The
Company’s liability under clause 3.1 is limited (at the Company’s option) to
replacement or repair or payment of the cost of replacement or repaid of the
relevant Equipment or repayment of the price where it has been paid. Any claim
in respect of breach of the warranty in clause 3.1 should be made within 30 days of the date of installation of the relevant Equipment.
9.3 The
Company’s liability to the Buyer for breach of any implied term not excluded by
clause 11/1C will be limited (at the Company’s option) to replacement or repair
or payment of the cost of replacement or repair of relevant Equipment or
repayment of the price where it has been paid.9.4 To
the fullest extent permitted by the law the Company will not be liable to the
Buyer for loss of profit or other economic loss; direct or consequential loss;
special, general or other damages; or other expenses or costs arising out of
any breach of the Contract or any common law duty (including negligence) by the
Company, its agents or employees.10
OTHER
ITEMS
10.1 The
Buyer licenses the use by the Company of any copyright material patents
registered designs or trademarks where this is necessary or desirable for the
execution of the Contract.
10.2 The
sale to and purchase by the Buyer of any equipment does not confer on the Buyer
any licence or right under any copyright, patent, registered design, or
trademark which is the property of the Company. Use of software is subject to
the Company’s software licence agreement.10.3 The
Buyer will confirm to all reasonable requirements imposed by the Company with
respect to trademarks, or identification marks in respect of the Equipment.
10.4 The
Company will be entitled to set off against any monies owing to the Buyer
amounts owed to the Company by the Buyer under the Contract or any other
account.11
MISCELLANEOUS
11.1 Each
party acknowledges and agrees that;
(a) the
Contract represents the entire agreement between the parties and supersedes all
previous agreements;(b) it
has not entered into the Contract in reliance on, or as a result of any
statement or conduct of any find (including without limitation, any
representation, warranty, advice or undertaking);(c) All
conditions, warranties or other terms implied by statue of common law are
expressly excluded to the fullest extent permitted by law; and the Contract may
only be amended by agreement in writing.11.2 Nothing
in these Terms entitles the Buyer to any priority of supply of Equipment as
against the Company’s other distributors, agents and customers.
12
DEFINITIONS
AND INTERPRETATION
In these Conditions of Sale the following terms have
the following meanings unless the context requires otherwise:
“Buyer” means a person from whom the
Company accepts an order for Equipment.“Company” means Ultimate Showers Pty
Ltd, trading as Simply Showers™. “Contract” means the agreement
constituted by the Company’s acceptance of the Buyer’s order and includes these
Conditions of Sale.“Equipment” means all goods of any
kind supplied by the Company at the Buyer’s request.“Installation”
means installation of
any Equipment /materials for or at the request of the Buyer.
