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Terms Of Sale

 

TERMS OF SALE

This agreement set out the terms under which WHITELAW ENGINEERING & MACHINERY PTY. LTD. ABN 12 009 940 523 (the Seller) provides goods and/or services to you (being the individual, company or legal person purchasing such goods or services) (the Buyer).
If the Buyer orders, accepts or pays for any goods and/or services after receiving or becoming aware of these terms, or otherwise indicates assent, then the Buyer is taken to have accepted these terms.

1. PURCHASE ORDERS

(a) These terms will apply to all the Buyer’s dealings with the Seller, including being incorporated in all agreements, quotations or orders under which the Seller is to provide goods or services to the Buyer (each a Purchase Order) together with any additional terms included in such a Purchase Order (provided such additional terms are recorded in writing).
(b) The Seller is entitled to vary any Purchase Order for goods where goods have been superseded by the manufacturer. Goods may vary slightly where they have been superseded by the manufacturer.
(c) In the event of any inconsistency between these terms and any Purchase Order, the clauses of these terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Purchase Order) will prevail over these terms to the extent of any inconsistency.

2. CANCELLATIONS

(a) The Buyer cannot cancel a Purchase Order once it has been accepted by the Seller, unless:
(i) the delivery of the goods, which are the subject of the Purchase Order, is between 3 months and 6 months late; or
(ii) the delivery of the goods, which are the subject of the Purchase Order, is more than 6 months late; or
(iii) otherwise agreed in writing.
(b) If a Buyer cancels a Purchase Order:
(i) the cancellation must be in writing;
(ii) any deposit paid by the Buyer will not be refunded, if the Buyer cancels a Purchase Order under clause 2(a)(i);
(iii) the deposit paid by the Buyer will be refunded, if the Buyer cancels a Purchase Order under clause 2(a)(ii); and
(iv) any Exclusive Goods, (whether in store, in transit or being manufactured) which were procured or ordered by the Seller before such cancellation, must still be purchased by the Buyer, unless otherwise agreed in writing by the Seller.
(c) For the purpose of clause 2(b), ‘Exclusive Goods’ means any goods which are made to order, bespoke, custom or are not the standard range sold by a manufacturer.

3. PAYMENT

3.1 DEPOSITS
Unless otherwise agreed in writing:
(a) The Seller requires a 20% deposit of the total quoted fee within 7 days of a Buyer placing an order;
(b) deposits are non-refundable, non-transferrable and cannot be exchanged for a credit; and
(c) deposits are payable in Australian currency.

3.2 PAYMENT OBLIGATIONS
Unless otherwise agreed:
(a) If the Seller issues an invoice to the Buyer, payment must be made by the time specified on such invoice.
(b) In all other circumstances, the Buyer must pay for all goods and services on or prior to delivery or pickup.
(c) If the Buyer’s payment is dishonoured or reversed for any reason, the Buyer must immediately make that payment again.
(d) The Seller reserves the right not to release any goods or provide any services to the Buyer until all goods and services have been paid for in cleared funds.
(e) The Seller may require a proof of purchase (POP) prior to delivery or pickup.
(f) The Buyer must not set off any money alleged to be owing by the Seller against money due by the Buyer to the Seller.

3.3 CURRENCY
(a) A reference to “$” or “dollar” is to Australian currency;
(b) Subject to the Buyer having paid a deposit in accordance with clause 3.1, for imported goods, the Buyer will be entitled to elect whether the price is expressed as at the exchange rate agreed between the Seller and the Buyer at the date of a Purchase Order (Fixed Exchange Rate) or at the exchange rate as at the date of payment (Floating Exchange Rate).
(c) The Buyer acknowledges and agrees that the value of the deposit may change to reflect any changes in the exchange rate between the date on which the deposit was paid and the date of a Purchase Order. Any change in the value of the deposit will be expressed as an adjustment to the final price of a Purchase Order.
(d) A Purchase Order will state whether the Fixed Exchange Rate or the Floating Exchange Rate applies and, in the case of the Fixed Exchange Rate, what that rate is.
(e) The Floating Exchange Rate will be determined with reference to the values on https://www.rba.gov.au/statistics/frequency/exchange-rates.html
(f) The Buyer must pay for all the goods and/or services at the exchange rate elected on the Purchase Order.
3.4 GST
Unless otherwise indicated, amounts stated in Purchase Orders on the Seller’s website or in stores, do not include GST. In relation to any GST payable for a taxable supply by the Seller, the Buyer must pay the GST subject to the Seller providing a tax invoice.

3.5 CREDIT CARDS AND CARD SURCHARGES
(a) The Seller only accepts payments made using a credit card, if the credit card is either Visa or MasterCard. American Express, Diners Club and/or other credit cards are not accepted.
(b) The Seller reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard).

4. PRICING AND AVAILABILITY

(a) The Buyer acknowledges that despite the Seller’s reasonable precautions, goods may be listed at an incorrect price, or with incorrect availability and/or other information, due to typographical errors or oversight. In such circumstances, the Seller reserves the right to cancel a Purchase Order, even if the Purchase Order has been paid for and previously accepted by the Seller.
(b) If the Seller cancels a Purchase Order in accordance with clause 4(a), the Seller will as soon as practicable contact the Buyer and issue a refund for any payment the Buyer has made for the cancelled order.
(c) The Seller will endeavour to make any refund under this clause using the same payment method as the payment method used by the Buyer during the original purchase, however may vary this method at its discretion.

5. DELIVERY

5.1 COST AND OBLIGATIONS
(a) Unless otherwise indicated, amounts stated in Purchase Orders, on the Seller’s website or in stores, do not include delivery.
(b) For goods to be delivered, the Seller will charge the Buyer for delivery (notwithstanding that it may not have previously done so).
(c) Delivery is to the delivery point specifically accepted by the Seller.
(d) The Seller shall make all reasonable attempts to meet the scheduled delivery date(s) however will not be held liable for failure to meet these dates.
(e) If the Seller is unable to complete the delivery within the agreed time schedule due to the Buyer’s absence or other fault of the Buyer, the Buyer will be liable for all charges and costs incurred including but not limited to warehousing, transportation and redelivery.
(f) If the Buyer organises delivery independently of the Seller, the Seller shall not be held liable for non-delivery, lateness of delivery or loss or damage of the goods during transit.
(g) The Seller may, at its discretion, deliver the goods to the Buyer in any number of instalments.
5.2 DAMAGE IN TRANSIT
The Seller shall not be liable for loss of or damage to goods in transit and the Buyer must make all claims for such loss or damage against the carrier.

6. STORAGE

(a) Where Seller is requested by the Buyer or required to store goods in their warehouse for periods of greater than thirty (30) days, the Seller reserves the right to invoice the Buyer upfront for all costs already incurred by the Seller and the Buyer must agree to pay such invoices in accordance with clause 3 of this agreement.
(b) Where the Seller warehouses or stores goods on behalf of the Buyer due to a delay on behalf of the Buyer or on the Buyer’s request, the Buyer agrees to pay a warehousing fee of 3% of the total quoted value of all goods in storage per quarter or part thereof. These charges will be invoiced quarterly in advance.

7. PRODUCT INFORMATION

(a) The Seller endeavours to ensure that the descriptions and specifications in relation to the products on its website or in catalogues are accurate. However, photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, descriptive literature or a catalogue are based on information provided by manufacturers and suppliers and, as such the Seller does not guarantee that those descriptions and specification are accurate or free from errors or omissions. The Seller reserves the right to make any necessary corrections to the descriptions or specifications without notice.
(b) To the extent permitted by law, any performance data provided by the Seller, a supplier or a manufacturer is an estimate only and should be construed accordingly.

8. TITLE AND RISK

(a) Until the price of goods is paid in full, title in those goods is retained by the Seller.
(b) Subject to clause 5.2, risk in the goods will pass on delivery to the Buyer. Delivery may not be refused by the Buyer.
(c) If the Buyer does not pay for any goods on the due date for payment, the Buyer authorises the Seller, its employees and agents to enter any premises occupied by the Buyer or any other place where the goods are located and use reasonable force to retake possession of the goods without liability for trespass or damage.
(d) The Seller may at its option keep or resell goods retaken from the Buyer.
(e) If the Buyer sells the goods or sells items into which the goods are incorporated before payment in full to the Seller, the Buyer acknowledges that such sale is made by the Buyer as bailee for and on behalf of the Seller, to hold the proceeds of sale on trust for the Seller, in an account in the name of the Seller, and must pay that amount to the Seller on demand.

9. DEFECTIVE GOODS AND ACCEPTANCE

9.1 DEFECTIVE GOODS
Where the Buyer considers that any goods provided by the Seller are defective, the Buyer must, within seven (7) business days of receiving the goods, inform the Seller of that fact in writing.

9.2 BUYER’S OBLIGATIONS

9.3 Where goods are the subject of a notice under clause 9.1:
(a) the Buyer must leave the goods in the state and condition in which they were delivered until such time as the Seller or its duly authorised agent has inspected the goods;
(b) such inspection must be carried out within a reasonable time after notification by the Buyer; and
(c) if paragraph 9.3(a) is not complied with, the Buyer will be taken to have accepted the goods and the Seller will be entitled to the price for the goods set out in any Purchase Order.

9.4 REPAIRS OR REPLACEMENTS OF DEFECTIVE GOODS
If, upon inspection, in the reasonable opinion of the Seller:
(a) the goods are defective; and
(b) the goods were damaged by the Buyer and/or the Buyer did not fail to take reasonable steps to prevent the goods from becoming damaged; or
(c) the goods are otherwise not in conformity with the Purchase Order, then at the discretion of the Seller, the Seller will:
(i) replace the goods or supply the equivalent of the goods;
(ii) repair the goods;
(iii) pay the Buyer the cost of replacing the goods or acquiring equivalent goods; or
(iv) pay the Buyer the cost of having the goods repaired.

9.5 GOODS CONSIDERED NOT TO BE DEFECTIVE
If, upon inspection, in the reasonable opinion of the Seller,
(a) the goods are not defective; or
(b) the goods are defective due to an act or omission of the Buyer, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care by the Buyer; and
(c) the goods are otherwise in conformity with the Purchase Order, the Seller will refuse the Buyer’s return, the Buyer will be taken to have accepted the goods and the Seller will be entitled to the price for the goods set out in any Purchase Order.

9.6 ACCEPTANCE
Except where notice has been given in accordance with clause 9.1, acceptance of the goods is deemed for all purposes to have taken place:
(a) when the Buyer intimates to the Seller that it has accepted the goods;
(b) when the Buyer, after delivery of the goods, does any act in relation to them which is inconsistent with the Seller’s ownership of the goods; or
(c) upon the expiry of seven days from the date of delivery, whichever first occurs.

10. INSTALLATIONS

If installation and/or commissioning is not included in a Purchase Order, then goods are provided on a supply only basis and the installation and commissioning (if any) of the goods is at the expense of the Buyer. The following conditions will apply when the Seller provides installation services to the Buyer.

10.1 INSTALLATION DATES
(a) the Seller will provide the Buyer with an estimated installation date. This is an estimate only of when the Seller and/or its Personnel will be able to complete the Installation of the goods (Estimated Installation Date).
(b) the Seller will advise the Buyer as soon as practicable of the final installation date but at least one (1) day before the Installation takes place (Final Installation Date). The Final Installation Date is the date on which the Seller will complete the Installation.
(c) the Seller will be entitled to change the Final Installation Date by giving the Buyer one (1) days’ notice.
(d) If, on the Final Installation Date, the weather conditions are such that, in the reasonable opinion of the Seller, it is hazardous to complete the Installation, the Seller will be entitled to change the Final Installation Date without prior notice.

10.2 ACCESS
On the Final Installation Date, the Buyer must:
(a) be present at the premises and, if reasonably requested by the Seller, remain there while the Installation is being carried out;
(b) provide access to all Personnel, equipment and vehicles reasonably required to carry out the Installation; and
(c) ensure the Personnel have access to the area where the goods will be mounted.
If the Buyer is not at the premises on the Final Installation Date, the Seller will be entitled to charge the Buyer a call-out fee.

10.3 LOCATION
The location of the installation of each of the goods at the premises will be agreed by the Buyer and the Seller on the Final Installation Date.

10.4 DAMAGE
(a) The Buyer acknowledges the Installation might occasion minor damage to the property. Where such damage occurs, the Seller will use its best endeavours to repair the damage however will not be liable for damage arising out of any pre-existing conditions of the premises or for any dents to surfaces constructed out of tin, or a similar material.
(b) For, the avoidance of doubt, where the Buyer incurs costs repairing any damage to the premises occasioned during the Installation, whether by employing third parties to conduct repairs or otherwise, the Seller will not be liable for such costs.
(c) If the Buyer requests that the Seller assist the Buyer with any damage issues after the Installation, the Seller may, at its discretion, agree to provide such services and, if it provides the services, will invoice the Buyer separately for the services. Any invoice under this subclause will include a call-out fee.

10.5 DEFINITIONS
For the purposes of this clause 10:
(a) “Installation” means the services and/or works required, as may be applicable, to:
(i) conduct pre-installation site inspections at the property;
(ii) install the goods in accordance with the manufacturer’s specifications;
(iii) test the goods to ensure they are working in accordance with the manufacturer’s specifications; and
(iv) commission the goods so that they are operational.
(b) “Personnel” means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.

11. THIRD PARTY GOODS AND SERVICES

(a) Any Purchase Order that requires the Seller to acquire goods supplied by a third party on behalf of the Buyer may be subject to the terms & conditions of that third party (Third Party Terms), including ‘no refund’ policies.
(b) The Buyer agrees to any Third Party Terms applicable to any goods supplied by a third party that the Buyer or the Seller acquires as part of the Purchase Order and the Seller will not be liable for any loss or damage suffered by the Buyer in connection with such Third Party Terms.

12. WARRANTIES

(a) Goods sold by the Seller will have only the benefit of any warranty given by the manufacturer and the Seller’s warranty set out in a Purchase Order.
(b) To the maximum extent permitted by applicable law, all other express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement or a Purchase Order are excluded.
(c) Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, the Seller’s liability for breach of that non-excludable condition, warranty or guarantee will, at the Seller’s option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

13. LIMITATION OF LIABILITY

To the maximum extent permitted by applicable law, the Seller’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement:
(a) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill; and
(b) is limited, insofar as concerns other liability, to the total money paid to Seller under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).

14. INDEMNITY

The Buyer indemnifies Seller from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(a) any breach of this Agreement by the Buyer;
(b) any negligent, fraudulent or criminal act or omission of the Buyer or its Personnel; or
(c) any loss, damage, or personal injury suffered by any of Seller’s Personnel while providing services under this Agreement or on the Buyer’s premises.

15. SUBCONTRACTING

The Seller may subcontract any aspect of providing the goods and/or services and the Buyer hereby consents to such subcontracting.

16. FORCE MAJEURE

(a) If a party becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to an event beyond its reasonable control (Force Majeure), that party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure; and
(ii) so far as is known, the probable extent to which that party will be unable to perform or be delayed in performing its obligation.
(b) Subject to compliance with clause 16(a)(a), the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.
(c) The affected party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.

17. DISPUTE RESOLUTION

(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c) The parties acknowledge that compliance with this clause 17 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause 17.

18. GENERAL

18.1 GOVERNING LAW
This agreement is governed by the law applying in Queensland, Australia.

18.2 JURISDICTION
Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

18.3 AMENDMENTS
This agreement may only be amended by a document signed by each party.

18.4 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

18.5 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.

18.6 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party.

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