Terms and conditions
General conditions of sale
Orders are accepted only on the following terms and conditions unless otherwise agreed to in writing.
1 Definitions and interpretation
1.1Where the context permits:
'Buyer' means the person, corporation, firm or body whose name appears on an order to whom the Goods are supplied.
'Delivery' means:
(a) in respect of Goods which are agreed to be collected by the Buyer, physical collection by the Buyer or a carrier of the Buyer from the vendors premises;
(b) in respect of Goods which are to be delivered to the Buyer or in the case of any item not otherwise included in paragraph (a, actual receipt by the Buyer at the Buyers premises.
provided that delivery will be deemed to have occurred on the earlier of; if the Goods are available for collection, the date they are made available; or whichever of paragraphs (a) or (b) applies.
'Goods' means the goods and other merchandise agreed to be sold and purchased and the services agreed to be provided pursuant to this agreement.
'Price' means those prices appearing on the vendors current price lists or as otherwise quoted by the vendor in writing at the time an order is accepted by the vendor plus or minis any variations thereto calculated pursuant to this agreement.
'Proprietary Information' means any and all information relating to the Goods or the installation or operation thereof including intellectual property and copyright supplied to the buyer by the vendor.
'Quotation' means any quotation issued by the vendor in respect of the supply of the Goods too the Buyer.
'Site' means the site or premises of the Buyer specified on the order or as otherwise agreed in writing by the vendor.
'Vendor' means Barossa Valley Irrigation Works Pty Ltd ABN 12 088 167 542.
1.2 In this agreement, unless the context otherwise requires:
1.2.1An expression importing a natural person includes any company, trust, partnership joint venture, association, body corporate or Public Authority.
1.2.2 References to the word 'include' or 'including' are to be construed without limitation.
1.2.3 A word which denotes the singular denotes the plural, a word which denotes the plural denotes the singular, and a reference to any gender denotes the other genders.
2. Agreement
2.1 A Quotation is not an offer to sell and no order shall bind the Vendor unless it is agreed by the Vendor in writing. The Vendor reserves the right to withdraw or revise a Quotation at any time. The Buyer may only make an order by signing a Quotation and returning it to the Vendor or by a method accepted by the Vendor.
2.2 The agreement shall be formed by and upon the Vendor accepting any order on writing or by supplying the Goods.
2.3 The vendor shall sell the Goods and the Buyer shall buy the Goods and pay the Vendor the Price.
2.4 The agreement may only be varied in writing signed by each of the parties.
Where a variation is agreed, the vendor shall be entitled to a reasonable extension of time to complete the manufacture and/or delivery of the Goods.
2.5 If the Vendor agrees to alter or cancel this agreement or an order, the Buyer will indemnify the Vendor against any loss, damage and expense incurred by the Vendor in relation to the cancellation or alteration including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in Goods and all labour and engineering costs incurred by the Vendor in the execution or part execution of the Goods and including compensation payable to any supplier of the Vendor and loss of profit.
3. Prices and additional charges
3.1 All vendor price lists are subject to change without notice.
3.2 The Buyer shall be liable for the amount of an present or future sales consumption, use or other similar tax including and goods and services tax applicable to the Goods or the supply of the Goods which will be added to the Price.
3.3 The Vendor reserves the right to introduce a minimum order value for any Goods and to amend any such value without notice. The vendor reserves the right at its discretion to refuse to accept orders which do not satisfy its current minimum order value.
3.4 Additional charges may be levied by the Vendor to cover additional costs not included in the Price.
3.5 If the Buyer refuses or is unable to accept Delivery in accordance with the terms of this agreement the Buyer shall be liable on a full indemnity basis, for all costs, losses and expenses, including any freight, storage, extra cost of handling that may be incurred by the Vendor as a result of the Buyer's refusal or inability to accept delivery.
4. Payment
4.1 The Buyer shall pay the Price due and payable to the Vendor within 30 days of date of invoice or otherwise in accordance with any credit arrangements agreed in writing.
4.2 The Vendor may at its discretion, as a condition of acceptance of an order or as a condition of supplying the Goods at any time require the Buyer or any other person to do some or any of the following: provide a cash deposit in advance or delivery of the Goods; provide personal guarantees as to payment; provide bank guarantees as to payment; and/or enter into a credit arrangement.
4.3To the extent permitted by law, the Vendor has the right in its absolute discretion to give refuse, limit or withdraw any amount of credit to the Buyer.
4.4 The Buyer must not set off any money alleged to be owing by the Vendor against money due by the Buyer to the Vendor.
5. Ownership of Goods
5.1 Ownership of Goods supplied by the Vendor to the Buyer will not pass to the Buyer until the Vendor has received payment in full for the Goods and all other goods supplied by the Vendor to the Buyer.
5.2 Until the Goods have been paid for in full, the Buyer must do all of the following:
5.2.1 Hold the Goods on trust for the Vendor and store the Goods separately and marked in such a manor as to show clearly that they are the property of the Vendor.
5.2.2 Maintain and allow the Vendor to inspect records which identify any unpaid Goods owned by the vendor, detail third parties to whom the Buyer sells or otherwise disposes of the unpaid Goods and detail payments made by such parties for the unpaid Goods.
5.3 If the Buyer sells the Goods before payment in full to the Vendor, or uses the Goods in a manufacturing or construction process of its own or a third party, the Buyer holds the proceeds on trust for the Vendor in respect of those Goods, and must keep such proceeds in a separate account until the liability to the Vendor is discharged and must immediately pay that amount to the Vendor.
5.4 If payment for any of the Goods is overdue then the Buyer authorises the Vendor, its employees and agents to enter the premises where the Goods are stored without notice, without prejudice to any of its other rights and remedies and without liability for trespass or damage, to repossess the Goods.
6. Delivery
6.1 Risk in the Goods shall pass to the Buyer upon delivery.
6.2 All quoted Delivery dates are estimates only. The Vendor is not obliged to meet such dates and will not be liable to the Buyer by reason of delays caused by and reason whatsoever.
6.3 The Vendor may deliver the Goods by installments (where in the Vendor's opinion this is reasonable to do so) and issue interim invoices to the Buyer.
6.4 If delay in Delivery is caused by a circumstance of force majeure, or if the Goods are not collected by the Buyer immediately after Delivery, the Vendor may (at its option and without limiting its other rights and remedies) arrange suitable storage of the Goods, whether at its premises or elsewhere and the Buyer must pay or reimburse all costs and expenses of storage, insurance, demurrage, handling and other charges associated with such storage.
7. Installation
7.1 This clause 7 applies if the Vendor is installing the Goods.
7.2 The Vendor will install the Goods at the Site.
7.3 Unless otherwise agreed by the Vendor, the Buyer will do both of the following:
7.3.1 Be solely responsible at its own expense to obtain any permits or authorities required to install the Goods at the Site.
7.3.2 Prepare the Site in accordance with the specifications and requirements of the Vendor at the Buyers cost.
8. Warranty and Limitation of liability
8.1 The Vendor warrants that the Goods are of merchantable quality are fit for the purpose which has been notified by the Buyer to the Vendor in writing, prior to the date of this agreement. To the extent permissible at law, the Vendor makes no other warranties or representations to the Buyer.
8.2 In respect of Goods which are not ordinarily acquired for personal, domestic or household use or consumption, the liability of the Vendor for a breach of any condition or warranty implied by law is limited at the Vendor's option to the repair of the Goods, or supply of a replacement, or payment of the cost of replacing or resupplying the Goods or of aquiring equivalent Goods or payment of the cost of having the Goods repaired or resupplied. The Vendor will not be liable under this clause or generally to the extent that the Buyer has failed to mitigate its loss.
8.3 The liability of the Vendor under this agreement will be reduced by the amount of any contributory loss or damage to the extent caused by the negligent or willful act or omission of the other party.
8.4 The Buyer acknowledges and agrees that the Vendor has no liability in contract, tort (including negligence or breach of statutory duty), by statute of otherwise for loss or damage (whether direct or indirect) including profits, opportunity, revenue, goodwill, bargain, production, contracts, business or anticipated savings, corruption or destruction of data for any direct or indirect, special or consequential loss or damage whatsoever.
8.5The parties agree that if any limitation or exclusion of liability under this agreement is held to be invalid under any applicable statute or rule of law, it will to that extent be omitted.
9 Cancellation, default and remedy
9.1 If the Buyer defaults in any payment due to the Vendor or breaches any term or condition of this agreement or a resolution is passed or proposed or any application is presented for the winding up of the Buyer, or a receiver and/or manager is appointed for any part of the property of the Buyer or the Buyer makes or proposes to make any arrangement with its creditors or has appointed to it an administrator pursuant to Part 5.3A of the Corporations Act or execution is levied upon any part of the assets of the Buyer, then the Vendor may, at its option, do any or all of the following without prejudice to any other rights the Vendor has under this agreement and without notice to the Buyer:
9.1.1 cease to manufacture and/or withhold any deliveries of the Goods (whether or not ion transit) and whether or not agreed to be delivered under this agreement.
9.1.2 vary the payment terms so that all monies outstanding under this agreement and/or under any other contract between the Vendor and the Buyer, or held by the Buyer upon trust for the Vendor, become immediately due and payable on demand;
9.1.3 if the Buyer has failed to make any payment under this agreement when it is due and payable, require the buyer pay interest at the ANZ Reference Rate effective from time to time plus 2% per annum calculated on daily balances of amounts unpaid, and if so required the Buyer must pay that interest;
9.1.4 pursuant to and with the same rights set out in clause 5.4, immediately recover possession of and/or resell any Goods; and
9.1.5 terminate performance of this agreement and/or any other contracts between the Vendor and the Buyer.
9.2 Termination of this agreement shall be without prejudice to any right that may then have accrued between the Vendor and the Buyer under this agreement.
9.3 If the Buyer repudiates this agreement or terminates its performance or refuses to accept all or any of the Goods, the Buyer shall be liable to the Vendor on a full indemnity basis for any damage, expense or loss thereby suffered by the Vendor.
9.4 Without limiting any other clause under this agreement, if the Vendor fails to deliver the Goods to the Buyer within the required time, the Buyer shall not be entitled to terminated performance of this agreement unless the Buyer has served a written notice on the Vendor requiring delivery of the Goods and the Vendor fails to deliver them with in 5 business days. If the Vendor fails to Deliver any Goods to the Buyer for which the Buyer has paid, the only obligation of the Vendor shall be to refund to the Buyer the amount received in respect of the Goods not dispatched. The Vendor shall not be liable for any damage or other loss incurred by the Buyer or any third party arising directly or indirectly from the failure of the Vendor to Deliver the Goods on time or at all.
10. Return of Goods and Credit
10.1 The Buyer is deemed to have accepted the Goods and waived all claims against the Vendor unless it makes a claim in accordance with clause 10.2
10.2 Subject to law, the Buyer may reject any Goods which are wrongly supplied or oversupplied, or which are not in accordance with any express representations or these terms by notifying the Vendor of the claim and providing full particulars to the claim in writing within 5 business days of Delivery. The Vendor may dispute any such claim.
10.3 Goods referred to in clause 10.2 may be returned to the Vendor for credit if all of the following is complied with:
10.3.1 The Goods are retumed to the Vendor by prior arrangement and within the Vendors written approval within 5 business days of delivery, at no cost to the Vendor, unless delivered as the result of an administrative error by the Vendor, in which case the Vendor will bear the cost of return.
10.3.2 The Goods are accompanied by a dispatch note stating the Vendor's original invoice number and reason for return.
10.3.3 The Goods are returned in an unsoiled, undamaged and resalable condition in their original condition.
10.4 The Buyer must not return any Goods to the Vendor unless it has complied with clauses 10.2 and 10.3 and has done all things necessary to permit the Vendor to examine the Goods to the Vendors satisfaction within that period.
10.5 Without limiting any other clause in this agreement, if the Vendor accepts the return of Goods that are wrongly ordered by the Buyer, the Vendor may charge a restocking fee of up to 20% of the Price payable for the Goods. The restocking fee will be a minimum of $50.00
11. Designs and Proprietary rights
11.1 Where the design of the goods is provided by the Buyer or its nominee, or is provided by the Vendor in accordance with the Buyers specifications, the Buyer shall accept sole responsibility for the design and shall satisfy itself that the Goods are suitable in all respects for the purpose for which they are acquired.
11.2 The Buyer acknowledges that all Proprietary Information and all right title and interest therein are the sole property of or licensed by the Vendor and the Buyer shall gain no right title or interest in the Proprietary Information whatsoever. The Buyer specifically acknowledges the Vendors exclusive rights to ownership of any modification, translation or adaptation of the Proprietary Information and any other improvement or development based thereon which is developed, supplied, installed or paid for by or on behalf of the Buyer or any buyer of the Buyer.
11.3 The buyer indemnifies, and agrees to keep indemnified the Vendor against any loss, costs, expense, damages and harm suffered or incurred by the Vendor in connection with or arising out of the breach by the Buyer of any of the provisions of this clause 11 and/or any claims against the vendor arising out of the matters referred to in this clause11.
12. No Export
12.1 Unless otherwise agreed to in writing by the Vendor, the Goods supplied are intended for use only in Australia. If exported by the Buyer it is the Buyers responsibility to ensure that the goods and the use to which they are put comply with the laws of that country.
13. Miscellaneous
13.1 the Vendor shall not be liable for any loss, detention, delay or any failure to perform or comply with any term or condition of this agreement that loss, detention, delay or failure arises out of any circumstances beyond the reasonable control of the Vendor including, accidents, lockouts, strikes and other labour disturbances (the settlements of which shall be at the absolute discretion of the Vendor if it is party thereto), acts of God, earthquake, storm, tempest, fire, matters affecting the Vendor suppliers, lightning, unavailability of insurance at reasonable cost and no-delivery of material from the usual sources of supply of the Vendor. The Buyer must accept delivery of the Goods notwithstanding any delay in delivery caused by any of these events.
13.2 The waiver by the Vendor of any provision or breach by the Buyer of any provision of this agreement shall not be constructed as a waiver of any other provision or breach of any provision.
13.3 Should any provisions of the Conditions become unenforceable or be held void in any jurisdiction either in whole or part for any reason then that provision shall be deemed to be deleted from this agreement in respect of that jurisdiction alone without in any way affecting the validity or enforceability of any other provision of that provision in any other jurisdiction.
13.4 This agreement shall take precedence over any other representations, agreements, arrangements, or understandings including any made in order of the Buyer. Conditions or terms of contract submitted by the Buyer with an order do not form part of the agreement with the Vendor unless agreed to in writing by the Vendor.
13.6 Where there is more than one Buyer then the liability of each shall be joint and several.
13.7 Any description of the Goods is given by way of identification only and the use of such description will not constitute a contract of sale by description.