These Conditions of Sale shall be subject to the provisions of the Australian Consumer Law and any statutory amendment or re-enactment thereof for the time being in force which the Company is not capable of excluding, restricting or modifying. Unless otherwise inconsistent with the context the word “Australian Consumer Law” shall mean the law set out in Schedule 2 of the Competition and Consumer Act 2010 and any corresponding state or territory legislation, “person” shall include corporation, “Company” shall mean Belle Banne Conveyor Products Pty Ltd and its agents, servants and employees, and any of its subsidiaries as defined in section 9 of the Corporations Act 2001 (if such subsidiary is named as the party making or accepting the order), “goods” means any goods agreed to be supplied to the Purchaser by the Company under these Conditions of Sale, “PPSA” means Personal Property Securities Act 2009 (Cth) (including any amendment or re-enactment thereof), “Purchaser’ shall mean and include the person to whom any quotation is made and shall include any person offering to contract with the Company on these terms and conditions, and “services” means any services to be performed for the Purchaser by the Company under these Conditions of Sale.
The Company agrees to supply the goods and/or perform the services ordered by the Purchaser from time to time in accordance with these Conditions of Sale and these Conditions of Sale are intended to apply to all such orders as an overarching agreement. Any order placed by the Purchaser is deemed to be an order incorporating these Conditions of Sale notwithstanding any inconsistencies which may be introduced in the order itself or any other document of the Purchaser. Any terms and conditions contained in any order or other document of the Purchaser which are not embodied herein are expressly excluded and these Conditions of Sale take precedence.
Acceptance by the Purchaser of these Conditions of Sale (as amended by the Company from time to time) may be by any one of the following ways:
(a) by signing where indicated below and returning a copy of these Conditions of Sale to the Company;
(b) by performing an act that is done with the intention of accepting these Conditions of Sale (including but not limited to continuing to order the goods and/or services); or
(c) by oral acceptance.
Any quotation made by the Company is not an offer to sell the goods or to provide the services and no order given in pursuance of a quotation shall bind the Company until accepted by it in writing or by the commencement of supply of the goods and/or performance of the services. The Company reserves the right at any time to reject or not process any order placed by the Purchaser.
(a) Any date quoted for delivery of the goods and/or performance of the services is an estimate only and the Company shall not be liable to the Purchaser for any loss or damage howsoever arising for failure to deliver the goods and/or perform the services on or before the quoted date. The Purchaser shall accept and pay for goods and/or services when tendered notwithstanding any failure by the Company to deliver the goods or perform the services by the quoted date. Written advice to the Purchaser that goods are ready for delivery whether in whole or in part shall constitute the delivery of those goods to the Purchaser and the terms of payment shall apply.
(b) Except where the Purchaser has rights or remedies under the Australian Consumer Law which cannot be excluded, the Company shall not be liable to the Purchaser or any other party for any direct or indirect or consequential injury loss or damage whatsoever by reason of any delay in delivery of the goods or performance of the services whether the same is due to the negligence of the Company or any other party, strike or any other industrial action be it of the Company or other party, or any other cause whatsoever.
(c) The Company reserves the right to deliver the goods by instalments. If delivery is made by instalments, the Purchaser shall not be entitled:
(i) to terminate or cancel the order; or
(ii)to any loss or damage howsoever arising for failure of the Company to deliver any instalments on or before the quoted date.
(d) Any quotation containing a provision to supply goods “ex stock” is subject to fulfilment of prior orders at the date of receipt of the Purchaser’s order.
Any order may only be cancelled, varied or suspended by the Purchaser with the prior written consent of the Company and in the event of such cancellation, variation or suspension, the Purchaser undertakes to reimburse and indemnify the Company for any reasonable costs, expenses or charges incurred by the Company in preparation for and in the execution of an order.
(a)All goods are supplied subject to reasonable availability to the Company of suitable materials and components and the Company reserves the right to substitute suitable alternative materials and components where necessary.
(b)Whilst every effort is made to ensure their accuracy, the description, illustrations and materials contained in any catalogue price list, brochures, leaflets or other descriptive matter provided by or on behalf of the Company represent the general nature only of the items described therein and save where the Company has accepted an order of goods and/or services specified as so described or illustrated, shall not form any part of an order or agreement or amount to any representation or warranty in respect of the goods and/or services.
(c)The Purchaser warrants that any goods supplied or services performed by the Company which are based in whole or in part upon designs, drawings or specifications supplied to the Company by or on behalf of the Purchaser shall not infringe any intellectual property rights of third parties and that any such designs, drawings or specifications shall be complete in every respect to enable the Company to supply the goods and/or perform the services in compliance with all requirements of the Purchaser or of any applicable law. The Purchaser shall indemnify and hold harmless the Company against any action, loss, cost, claim or damage that may be brought against or suffered by the Company for any breach of this warranty by the Purchaser.
(d)The Company does not warrant or guarantee and it shall not be a term of any agreement between the Company and the Purchaser that any goods supplied or services performed by the Company which are based upon any designs, drawings or specifications supplied to the Company by or on behalf of the Purchaser will achieve any standard of performance or capacity whatsoever and the Purchaser acknowledges that it does not rely on the skill and the judgment of the Company for the fitness of the goods or services for any purpose of the Purchaser.