Terms & Conditions
In these conditions ‘Company’ means G P Embelton & Co Pty Ltd ACN 004 251 861 and includes its successors and assigns and ‘Buyer’ means the buyer whose order is accepted by the Company.
No order, whether resulting from a prior quotation or not, shall result in a binding contract until such order is accepted by the Company.
2. PRICE VARIATION
If the cost to the Company of any of the goods or components thereof covered by the contract shall between the date of any quotation or contract and the date of delivery have increased or decreased by reason of any alteration in the cost of material labour (as affected by alteration in the rate of wages, hours of working or any other conditions of employment prescribed by any determination award or agreement) insurance (including War Risk) or freight cartage excise sales or any other tax or in the rate of exchange or by reason of any order or regulation of any Government, or other competent authority or of the inability of the Company to procure materials of the appropriate economic dimensions or from any other cause beyond the Company’s control then the purchase price of such goods shall be varied accordingly unless otherwise stated in the quotation of which the General Conditions form a part.
(a) Payment shall be made on or before the last day of the month following the date of issue of the relevant invoice unless otherwise agreed in writing by the Company. All instalments of goods shall be separately paid for and all payments shall be made on the due date hereinbefore provided as a condition precedent to future deliveries and accordingly the failure of the Buyer to pay for any one or more instalments shall entitle the Company at its option to treat such failure as a repudiation of the whole or the balance of the contract by the Buyer itself to abstain from further performance thereof and to recover from the Buyer damages for the breach of contract and it shall not be necessary for the Company to either manufacture or tender the said goods or any portion or portions thereof to the Buyer before bringing action for damages.
(b) Should payment remain outstanding beyond the Company’s payment terms as outlined in clause 3(a) above, the Buyer agrees to pay interest on all amounts outstanding from the due date until the date of payment at a rate equal to 2% above the Company’s then overdraft rate as varied from time to time.
(c) Should payment remain outstanding beyond the Company’s payment terms as outlined in clause 3(a), the Buyer agrees to pay all legal costs (on a solicitor/own client basis) and all Mercantile Agent’s fees (including any commission payable on the payment of the debt) incurred by the Company as a result of non-payment of the debt.
(d) The Buyer hereby charges all its property whatsoever whether currently owned by the Buyer or acquired in the future with its indebtedness to the Company.
The Buyer shall inspect the goods or any instalment thereof immediately on the delivery thereof and shall within fourteen (14) days from such delivery give notice to the Company of any matter or thing by reason whereof the Buyer may allege that the said goods or any such instalment are not in accordance with the contract. If the Buyer shall fail to give such notice the said goods or any such instalment shall be deemed to be in all respects in accordance with the contract and the Buyer shall be bound to accept and pay for the same accordingly. No suit or action whatsoever shall be brought or sustainable by the Buyer on the contract or otherwise in the absence of any statutory provisions to the contrary unless the Buyer shall have complied with the terms conditions and stipulations of the contract.
(a) To the fullest extent permitted by law, the conditions contained herein (or as amended in writing from time to time by the Company) expressly exclude every warranty, condition, liability or representation concerning the goods and the Company, its employees and/or its agents (as applicable) shall not be liable for any loss or damage (including any consequential, special loss or damage or loss of profits) of any kind whatsoever, even if due to the negligence of the Company, its empl oyees and/or its agents (as applicable).
(b) Subject to subclause (c) below, the liability of the Company, its employees and/or its agents (as applicable) for a breach of any warranty or liability which cannot be excluded, restricted or modified by law, is limited to the re-supply of the goods (free of charge) where the goods, after an evaluation by an independent expert assessor (as agreed by the Company and the Buyer acting reasonably), are deemed to have been manufactured with defective materials and/or faulty workmanship (Faulty Goods). For the avoidance of doubt, the Company will only be liable to re-supply the Faulty Goods to the place where the Faulty Goods were first delivered (or as otherwise agreed by the Company (in i ts absolute discretion)), and the Company will not be liable to install the Faulty Goods, unless otherwise agreed by the Company;
(c) Regardless of whether goods are deemed to be Faulty Goods, the Company will not be liable whatsoever for goods which are deemed in the Company’s absolute discretion to be Faulty Goods due to reasons beyond the control of the Company, including (without limitation):
(i) normal wear and tear;
(ii) adverse environmental circumstances, including (without limitation), the presence of chemicals, gases and/or other unusual factors which would cause deterioration of the goods;
(iii) incorrect installation procedures; and/or
(iv) physical overloading of the goods during installation and in service.
(d) Except as required by law, or as set out in the conditions contained herein (or as amended in writing from time to time by the Company) the Company will not be obliged to accept goods that are returned to the Company.
(e) The Buyer agrees to indemnify the Company, its employees and/or its agents (as applicable) from every liability, loss, damage, cost and expense which is directly or indirectly incurred or suffered by the Company, including without limitation caused by or contributed by any of the following:
(i) the Company complying with any instruction of the Buyer in respect of any goods;
(ii) the Buyer’s failure to:
(A) comply with any law in relation to the goods or the use of the goods;
(B) take reasonable precaution to detect any matters in relation to which the Company may become liable in any way, including (without limitation) under Part VA of the Trade Practices Act 1974 (Cth); or
(C) take any reasonable precaution to bring to the attention of any potential user of the goods any dangers associated with the goods;
(iii) the use or operation of the goods by the Buyer; and
(iv) any negligence by the Buyer or breach by it of the conditions contained herein (or as amended in writing from time to time be the Company).
Upon the happening of any of the following events, viz; in the event of the Buyer failing to adhere to the Company’s terms of payment; if in the opinion of the Company the financial circumstances of the Buyer so warrant; or if the Buyer (being a company) goes into liquidation, has a receiver appointed, suspends payment of debts, enters into any deed scheme composition or arrangement with or for the benefit of its creditors or any class of them or has an official manager appointed, the Company shall be entitled to stop goods in transit (and in any such event the Company reserves the right of disposal in respect of such goods) or to suspend deliveries of goods without bei ng liable for any loss or damage suffered by the Buyer by reason of or in consequence of any such stoppage in transit or suspension of deliveries or at the Company’s option the Company shall be entitled to determine the contract immediately reserving to the Company all its other rights and remedies. Upon any such determination of the cancellation of this sale for any cause the Company shall be entitled to recover payment for all deliveries already made and for the cost of labour already expended and for materials already obtained or ordered for the purpose of future deliveries (whether or not such materials have been incorporated into the goods being purchased by the Buyer), including appropriate overheads.
7. PASSING OF RISK AND OWNERSHIP
Without limiting the provisions of Clause 3:
(a) The risk in the goods shall pass to the Buyer when the Company delivers the goods in accordance with the terms hereof to the Buyer or its agent or other person to whom the Company has been authorised by the Buyer to deliver the goods and the Company shall have no responsibility in respect of the safety of the goods. Accordingly the Buyer shall insure the goods thereafter against such risks it thinks appropriate.
(b) Notwithstanding the foregoing, the ownership of the goods shall remain with the Company which reserves the right to dispose of the goods, until payment in full for all the goods has been received by it in accordance with the terms of this contract. If such payment is overdue in whole or in part for a period of not less than seven (7) days, the Company may without prejudice to any of its other rights, recover or resell, without notice or demand, the goods or any part thereof and the Buyer its servants or agents may at any time enter any premises with or without plant and equipment, where it believes the goods or any part thereof may be located and take possession and remove the same without hindrance or obstruction. If any of the goods are incorporated in or used as material for other goods before such payment the property in the whole of such other goods shall be and remain with the Company until such payment has been made or the other goods have been sold as aforesaid and all the Company’s rights hereunder and to the goods shall extend to those other goods. Furthermore if the goods become fixtures by reason of their fixation to any land then, for the purposes of this contract, such fixtures shall be deemed to remain as goods and therefore may be removed and resold by the Company in the manner prescribed above.
(c) For the purposes of this condition time of payment shall be of the essence of the contract.
8. GOODS MANUFACTURED TO BUYER’S SPECIFICATION
(a) The Buyer shall indemnify and undertakes to keep indemnified the Company from and against any actions claims demands royalties costs and expenses of whatsoever description brought against or suffered by the Company by reason of or in consequence of any infringement of letters patent copyright trade marks or registered designs owned by any person arising from the manufacture of goods to the design specification or requirements of the Buyer. Where no tolerances or materials are specified by the Buyer’s drawings specifications or instructions the Company may manufacture the goods in its discretion to the appropriate Australian Standard or in accordance with usual trade usage.
(b) No responsibility is accepted for the safe custody of any of the Buyer’s dies, patterns or tools (whether included in the price of goods sold or not or as part of any quotation), samples, drawings, specifications, templates, or information supplied by the Buyer, all of which are held at the Buyers entire risk as to loss or damage by any cause whatsoever (and none of which will be returned unless so requested by the Buyer, within twenty-one (21) days of the date of receipt by the Company of the order to which it relates) and the Company shall be under no liability to the Buyer or any other person for any disclosure of any information contained therein or for any reproduction thereof in any material form by any servant or agent of the Company.
(c) Where the Buyer supplies materials to the Company they will be held at the Buyer’s risk and the Company shall not be liable for any loss of or damage to such materials from any cause whatsoever (including but without limiting the generality of the foregoing loss of material due to faulty processing or during manufacture) whether due to the negligence of the Company its servants or agents or otherwise.
(d) Where materials are specified or supplied by the Buyer the Buyer shall be responsible for ensuring that such materials are fit for their required purpose.
9. ADVICE AND ASSISTANCE
Any recommendations or advice given by the Company to the Buyer related to the goods in any way whatsoever shall not form par t of the contract and the Company shall not be liable to the Buyer if such recommendations or advice shall be incorrect incomplete or misleading PROVIDED HOWEVER that this provision shall not affect any rights of the Buyer under any statutory provisions which may be applicable but in any event the liability of the Company shall be limited in accordance with the terms of Clause 5 hereof.
10. DELAYS IN DELIVERY
The Company will use reasonable endeavours to deliver the goods on or within the time or times specified in the contract but failure so to do by reason of the inability of the Company to obtain supplies of the raw materials from its usual sources or any strike or lockout or by reason of war riots civil commotion fire act of God or any other cause whatsoever beyond the control of the Company shall not constitute a breach of contract but the contract shall be deemed to be suspended with liberty to the Company at any time to cancel it or any unfilled part thereof or to renew it upon the cessation of the cause preventing delivery.
11. RESTRICTIONS OF MANUFACTURE ETC.
If the manufacture or use or sale of any of the goods shall be forbidden or restricted by any competent Government Authority or if the contract shall be cancelled or suspended under the conditions thereof or if the Buyer shall at any time be in default under the contract the Buyer shall not be relieved thereby of the obligations imposed by the contract but without prejudice to any other rights which the Company may have under the contract shall be liable to pay in full for such of the goods as shall have already been manufactured or a proportional part (to be determined, unless otherwise agreed by arbitration pursuant to the provisions of the Commercial Arbitration Act 1984) for such as shall have been partially manufactured together with all costs charges and expenses incurred by the Company in preparatory work necessary for the manufacture of the goods including the costs of materials on hand and unabsorbed tooling and die costs if applicable.
12. DESCRIPTIVE MATERIAL
Any photographs, illustrations, drawings or descriptive materials relating to goods contained in any catalogue brochure or advertisement are for the purpose of identification only and shall not constitute any contract relating to the goods or sale by description. The Company reserves the right to alter the design, construction, detail or specification of any of its goods described in any catalogue, brochure or advertising matter without notice.
The Buyer agrees to indemnify and to keep indemnified the Company upon demand against all taxes (both Federal and State) imposts, duties or other charges which the Buyer or the Buyer and Seller may have been or remain liable to pay to a third party as a consequence of this transaction or as a result of entering into the terms of this contract whether express or implied.
14. CONDITIONS TOPREVAIL
The placing of an order by the Buyer shall be deemed to be an acceptance of these conditions and any conditions in such order which may be contrary to or differ from these conditions shall to the extent of any inconsistency be null and void.
15. VICTORIAN CONTRACT
The contract shall be deemed to have been executed and entered into in the State of Victoria and the same shall be construed, enforced and performed in accordance with the laws thereof. Any proceeding whether by way of arbitration or otherwise in relation to, in connection with, or arising out of, the contract shall be heard at Melbourne, or such other place as the Company shall in its discretion determine, having regard to the relevant circumstances of the contract.