Any contract or order based on this or any other tender or quotation is only accepted upon and subject to the quotation and these Conditions of Sale which are to have full force and effect as if incorporated into the Buyer’s order. Unless expressly accepted in writing by Bestech Australia Pty. Ltd. (“the Seller”) any variations of, additions to or purported substitution for these Conditions of Sale in a Buyer’s order or order form will be deemed to be inapplicable to the supply of goods and services.
(a) For a period of 12 months, unless otherwise specified, from the date of invoice, the Seller warrants that the goods supplied shall be of merchantable quality and services provided will be fit for the purpose described. All goods and services supplied are subject to this warranty only and any liability arising out of or in respect of the supply, resupply, use or reuse whether singly or otherwise of these goods or services in contract or in tort, and whether for consequential loss or otherwise, is hereby excluded.
(b) Any liability incurred by the Seller to the Buyer is limited to the replacement of goods or in the case of services to the supplying of the services again or (at the option of the Seller) refund of the price paid to the Buyer and in particular does not extend to consequential loss and is conditional upon the Buyer within 90 days of delivery or within 30 days of a claim arising during any warranty period specified in this quotation making a written claim to the Seller setting out the full particulars of such claim and making the goods available to the Seller to enable a proper examination.
3. Advice Assistance and Installation
Any advice, recommendation, information, assistance or service provided by the Seller, its employees, agents and representatives in relation to goods sold or installed, or their use or application is given in good faith and is believed by the Seller to be appropriate and reliable. However, any such advice, recommendation, information, assistance or service is provided without liability or responsibility on the part of the Seller.
The Seller will make all reasonable efforts to have the goods delivered and services provided to the Buyer on or before the date agreed between the parties as the Delivery Date, but the Seller shall be under no liability whatsoever should delivery or the provision of services not be made by this date.
The point of delivery shall be “Ex-works” Seller’s premises unless otherwise specified by Seller. The risk of loss or damage in the goods purchased or services provided shall, unless otherwise agreed in writing, pass to the Buyer upon delivery to the Buyer or his agent or to a carrier commissioned by the Seller or Buyer of the goods. Where the buyer notifies the seller that it cannot take timely delivery of the products, seller may place such products in storage at the risk of buyer, and buyer shall reimburse all expenses incurred in connection with such storage. Buyer shall dispose of the packing material for the products at its own expense, and shall defend, indemnify & hold harmless the seller from any legal obligations in connection with such packing waste.
(a) Property in the goods shall remain with the Seller and the Seller reserves the right to dispose of the goods until such time as full payment is made for all amounts owing by the Buyer to the Seller so that the Buyer’s total indebtedness to the Seller under these Conditions of Sale is discharged.
(b) If the Buyer fails to pay any amount of the Buyer’s total indebtedness to the Seller under these Conditions of Sale when due to the Seller or, an event of default as specified in subclause (c) hereof occurs, the Seller may without notice and without prejudice to any of its rights and remedies recover and/or re-sell the goods or any of them and may enter upon the Buyer’s premises by its servants or agents for that purpose.
(c) Notwithstanding the provisions of these Conditions of Sale and in particular Clause 12 hereof, payment shall become due immediately upon the Buyer (being a natural person) committing any act of bankruptcy or the Buyer (being a company) committing any act which entitles any person to
apply to wind up the Buyer or, a Receiver and Manager of the Buyer is appointed.
(d) Until full payment is made the Buyer shall not modify, neglect or misuse the goods.
(e) The Buyer acknowledges that until his total indebtedness under these Conditions of Sale to the Seller is discharged he holds the goods as bailee of the Seller and that a fiduciary relationship exists between them.
(f) In the event of a sale of goods the Buyer in his position as a fiduciary shall:
(i) Assign to the Seller the benefit of any claim against a customer, and
(ii) Account fully to the Seller for the proceeds of the sale (unless and until the Buyer’s total indebtedness to the Seller is discharged).
Prices do not include GST unless otherwise stated. Prices for goods or services to be supplied by an external Supplier are based on prices quoted to the Seller by its Suppliers and the rates of freight, currency exchange, insurance, customs, duties and other costs of importation known to the Seller at the time of quotation. Unless otherwise stated, any major change in these rates or in the price of the goods or services before acceptance of any order may necessitate a revised quotation.
8. Force Majeure
Deliveries may be totally or partially suspended by the Seller during any period in which the Seller may be prevented or hindered from the delivery by the Seller’s normal means of supply or delivering by normal route through any circumstances outside its reasonable control, including but not limited to strikes, lockouts, raw material, shortages, accidents or breakdowns of plant machinery.
9. Payment and Default
Unless otherwise expressly agreed in writing the terms of payment shall be 50% with the purchase order and balance before dispatch of goods. Up to
thirty (30) days credit terms can be offered to approved buyers. If the Buyer makes default in any payment or commits any act of bankruptcy or being an incorporated company passes a resolution for winding up (except for the purpose of reconstruction) or a petition is presented for its winding up, or if any of the events referred to in Section 364 of the Companies Code occur then all monies owing and outstanding to the Seller on any account whatsoever and irrespective of whether the due date as per the Invoice of Account has occurred shall become immediately due and payable. The Seller shall charge interest to the Buyer’s account at the ANZ Bank’s overdraft rate for any monies outstanding for the period between the due date for payment and the actual date payment is received by the Seller. The Seller may without prejudice to its own rights either suspend further deliveries, require payment in advance for all such deliveries or terminate any contract forthwith by written notice to the Buyer.
10. Installation of Goods
Where the Seller has undertaken to install equipment it will be installed and placed in operating condition using test procedures and programs
established by the Seller. The Seller shall not be under any obligation to install the equipment
(a) unless the Buyer has made the equipment and the installation site available to the Seller for installation and has so notified the seller, or
(b) if the equipment has been modified without the Seller’s approval and/or subject to unusual stress, accident, misuse other damage beyond the
control of the Seller.
11. Software Licence
(a) Software furnished to the Buyer under a licence for use on a single system can be copied (with the inclusion of the Seller’s copyright notice) only for use in one system, except as may otherwise be provided in writing by the Seller.
(b)The Buyer agrees to ensure that no other copies are made of any of the Seller’s Software. In addition the Buyer will take all reasonable
precautions to keep the Software secret including procuring secrecy agreements from its employees and any other party required to have access to the Software.
To the best of the Seller’s knowledge goods sold to the Buyer will not infringe any patent, trademark, registered design or copyright of any third party but the Seller shall in no circumstances be liable to the Buyer in respect of any such infringement constituted by the sale or use of the goods.
13. Substitutions and Modifications of Specifications
The Seller assumes the right to make substitutions and modifications in the specifications of goods supplied or services provided by the Seller
provided that such substitutions or modifications will not adversely and materially affect the performance of the goods.
The Seller reserves the right to charge the Buyer a cancellation fee of a minimum of 20% for cancellation or rescission by the Buyer at any time of any contract or order based on any tender or quotation. Where specific identifiable costs in excess of 20% have been incurred by the Seller in performing any said contract or order; the cancellation fee will equal the value of such costs.