These Terms and Conditions (Clauses 1 to 15) form an
integral part of all agreements, understandings, quotations and order
acknowledgements.
TERMS AND
CONDITIONS OF TRADE: Sentek Pty Ltd (ABN 78 007 916 672)
(“We”,
“Our” or “Us” and includes Our successors and assigns)
To the extent
permitted by law, You agree that only these Terms apply to all quotations,
offers, Products and/or Services provided to You by Us (unless otherwise agreed
in writing)
1.
Definitions
In these Terms
(unless the context otherwise requires):
“including” is not to be treated as a word of
limitation.
“Incoterms” or international commercial terms are a
series of international sales terms, published by International Chamber of Commerce
(ICC) used in international commercial transactions. They are used to divide
transaction costs and responsibilities between buyer and seller and reflect
state-of-the-art transportation practices.
“Products” means all products which are the subject
of a binding quotation, offer or order and are supplied by Us.
“Services” means all services which are the subject
of a binding quotation, offer or order and are supplied by Us, including repair
services, training, consulting and rental of equipment.
“Terms” means these terms & conditions,
including the Schedule, Special Conditions and Annexures (if any).
“You” or “Your” means you the customer whose name and
address is specified in the Schedule or order and includes your legal
representatives, administrators, successors and permitted assigns.
2.
Quotations
a.
Quotations are
confidential and are based on the information provided by You. All reasonable
effort has been made to ensure the quotation is accurate, however, unforeseen
circumstances, provision of incomplete information, misinterpretations,
variations or extras added which affect production costs or the Services may
incur additional charges.
b.
Prices for Our products
shall be those stated on the quotation and are based on Our most current
published price schedule in effect, which unless otherwise stated, do not
include costs incurred for special packaging, shipping or taxes. If prices are
contingent on the purchase of a minimum quantity that is not met by You, We
shall have the right to adjust the price accordingly.
c.
We reserve the right to
re-quote for any subsequent or continuing Services or production batches irrespective
of any previous quotation or correspondence.
d.
Unless otherwise
stated, all quoted prices are:
i.
in AUD, EUR or USD and
valid for 30 days only.
ii.
exclusive of GST, VAT
and all local and regional taxes and charges; and
iii.
exclusive of packaging
and delivery charges
e. You will pay GST, VAT and Duty (and all
other applicable imposts) in Your country of receipt in addition to such quoted
prices and with respect to any other taxable supply in accordance with these
Terms.
f.
If We arrange delivery,
delivery charges can be calculated at the time of dispatch and added to the
invoice or charged at a later date on Our invoice. An additional
administration fee will apply. No responsibility is accepted for goods in
transit. You should arrange Your own transit or marine insurance if required.
g.
Quoted lead times are
based on anticipated lead times for raw materials and components, production
loading and capabilities at the time of quoting. Changes to requirements,
delays in providing correct, complete and/or required information, delays in
returning approvals, delays in receiving raw materials and components or other circumstances
causing a delay, may result in a rescheduling of the order and a change in the
scheduled delivery date.
3.
Orders
a.
Each order You place is
deemed to include a representation that You are solvent and able to pay all of
Your debts as and when they fall due.
b.
At the time of
placement of each order, You must inform Us in writing of any facts that might reasonably
affect any decision to accept the order and/or grant credit. Any failure to do
so shall be deemed to create and constitute an inequality of bargaining
position, taking unfair advantage of Us and to be unconscionable, misleading
and deceptive.
c.
After placement of an
order We acknowledge the order by sending You an order confirmation.
d.
Once you have placed an
order it cannot be cancelled or modified without Our written consent.
e.
We may invoice on the
scheduled delivery date, any Services provided, work undertaken (including
documentation), components or material purchased or committed to (including pre-committed
labour and production which cannot be reallocated), prior to cancellation or
modification of an order and any other costs which result from any delay in
delivery caused by You.
f.
Returns may only be
made with prior written consent by Us and may not be accepted after 7 days from
the date of invoice. Freight costs on goods being returned to Us will be borne
by You. A restocking fee may be charged.
i.
Packing: Where goods
were originally supplied in a special Principal’s carton, any return shall be
made in that original carton and the goods shall be in their original condition
and unmarked condition, complete with any instruction sheets supplied.
ii.
Goods not returnable: Any
goods specifically made, including items cut to length, any goods altered or
damaged by You, and any goods especially indented and which are not normal
stock items, will not be returnable to Us once supplied.
4.
Delivery
a.
Delivery of a Product
is deemed to have occurred in accordance with the Incoterms agreed by Us and
specified on Our invoice.
b.
Delivery of Services is
deemed to have occurred on the day when the Services are completed by Us.
c.
We will use Our
reasonable endeavours to deliver Products or Services on or prior to the
scheduled delivery date.
d.
We accept no liability
for any consequence arising from any delay, failure or inability to deliver any
Products or Services.
5.
Credit
Facility
a.
You authorize Us to
make all reasonable enquiries to verify Your creditworthiness and credentials.
b.
Your credit facility
with Us (if any) shall remain in the name stated by You on Your application for
credit facilities until We give Our consent in writing to any change.
c.
If We grant any credit
facility or nominate any credit facility limit, We may vary or withdraw such
credit facility or credit limit at any time. If credit is withdrawn, all
outstanding amounts become immediately due and payable.
d.
You must notify Us in
writing of any material change in Your structure, management or position or of
any other matter that may affect Your credit status (including any sale or disposition
of any part of Your business, any change in control, or any new charge,
mortgage or security given to any supplier or financier) within 48 hours of any
such change.
6.
Payment
terms
a.
Payment must be made
without set-off or deduction by no later than the end of the month following
the month in which the Products and/or Services are invoiced, provided that if
You do not have a credit facility with Us or if Your credit facility is
cancelled You must pay the purchase price for Products and/or Services in full
before delivery.
b.
Payment must be made at
the place specified on Our invoice.
c.
Interest may be charged
on overdue accounts. Interest will be calculated daily from the date of the
relevant invoice and up to and including the date of payment in full and will
be based on the Commonwealth Bank's published overdraft rate from time to time
plus 2%. Such interest will be compounding.
d.
Without prejudice to
Our other rights and remedies, default in payment shall entitle Us to cease or
suspend the supply of Services or the manufacture or delivery of any Product (and,
without limitation, to invoice for all work undertaken and costs incurred) and
to take proceedings for the collection of outstanding amounts.
e.
You will indemnify Us
on demand against all costs and expenses incurred in respect of anything
instituted or considered against You for the recovery of any debt, the repossession
of any Products or otherwise (including credit collection commissions, legal
fees, bank charges and court costs).
f.
If You commit or are
involved in any act of insolvency, You agree that this shall be deemed a
default under these Terms. Upon such act, the cost of all work undertaken and
expenses incurred in the provision of Products and Services under these Terms
become immediately due and payable and shall be invoiced as at that date. An
'act of insolvency' is deemed to include bankruptcy, liquidation, receivership,
administration or the like.
g.
All shipments and
deliveries are subject to approval of Your credit standing by Us. We reserve
the right to decline or postpone shipments for any reason except upon receipt
and acceptance of payment or upon terms and conditions acceptable to Us.
7.
Credit
Card Payments
We accept credit card payments using Visa
and MasterCard. Credit Card payments will incur a surcharge, 1.77% within
Australia and 2.94% for International transactions.
8.
Products:
Retention of Title and Risk
a.
All risk in respect of
the Products delivered shall be borne by You from the time the Products cease
to be within Our actual possession and from such time You accept liability for
safe custody of the Products and agree to indemnify Us for any loss relating
thereto.
b.
Title in the Products
passes to You at the time that all monies due in respect of the Products
supplied to you, whenever owing, are paid by You.
c.
Until we have received payment
in full for the Products:
i.
You irrevocably
authorize Us to enter any property where any Products are held or stored, to
retrieve those Products which have not been paid for in full and in doing so,
to use such force as is necessary. We will not be liable for trespass or any
resulting damage and, without limiting any other rights and remedies, may keep
or resell any of the repossessed Products;
ii.
You agree that the
Products shall be identified or held in a manner which enables them to be
readily distinguished from products purchased from other suppliers or Products
supplied by Us for which you have paid in full; and
iii.
the provisions of the
Personal Property Securities Act 2009(Cth)(“PPSA”) clause 9 (below) will apply.
9.
Personal
Property Securities Act
a.
You acknowledge that We
have a purchase money security interest (“PMSI”) over the Products supplied by
Us and any proceeds to secure all amounts owed to Us for the purposes of the
PPSA.
b.
You further acknowledge
that We:
i.
may register the PMSI
on the Personal Property Securities Register (“PPSR”);
ii.
have the ability to
reclaim the cost of the registration of the PMSI on the PPSR from You; and do
iii.
not need to give any
notice under the PPSA (including a notice of a verification statement) to You
unless the notice is required by the PPSA and cannot be excluded.
c.
The parties acknowledge
that, unless otherwise defined in these Terms, the terms and expressions used
in this clause 9 have the same meaning as given to them, or by virtue of, the
PPSA.
10.
Warranty
and Liability
a.
Our liability with
respect to Products is for a period of 24 months from delivery and is limited
to the rectification of Our faulty workmanship, defective in material and/or
non-compliance by Us.
b.
In entering into these Terms,
You do not rely on any representation, warranty or other provision except as
expressly provided in these Terms and all conditions, warranties or other terms
implied by statute or common law are excluded to the fullest extent permitted
by law.
c.
We will undertake
in-warranty service for those products for which the existence of warranty
conditions can satisfactorily be verified. The existence of warranty
conditions is determined by the proof of purchase and purchase date.
d.
Warranty repairs
include only freight costs back to You. Freight costs to send repairs to Us
will not be covered.
e.
We accept no liability
for:
i.
any defect or failure
due to accident, misuse, abuse, negligence and non-observance of installation
and operating instructions, choice of location, configuration or connection, or
faulty power supply;
ii.
Products which have
been repaired or serviced by a person not authorised by Us or which have been
fitted with non-approved parts;
iii.
failure to obtain
proper maintenance;
iv.
Products used other
than for any reasonable purpose for which they were manufactured, or used in a
way not specified by Us;
v.
Products You sell,
lease or otherwise part with possession of;
vi.
deterioration due to
normal use and exposure, including abnormal environmental conditions such as
lightning strike, flood, extreme heat and insect infestation;
vii.
expenses relating to
transportation of the Product to and from You; and
viii.
any damage, indirect or
incidental, to the Products of whatever nature.
f.
Warranty is likewise
extended to non-warranty repairs carried out by Us but is limited to 3 months
and is applicable to the repair work done and not to any subsequent failure of
unrelated parts and software. Charges will be at the fixed, scheduled rate,
which includes part costs and labour.
g.
The remedy in respect
of any breach of clause 10 (a) or any breach of any condition or warranty not
otherwise excluded by clause 10 (b), is limited at Our option to the
replacement of Products or the supply of equivalent Products or the re-supply
of Services rendered or the cost of having those Services re-supplied.
h.
If you should make any
claim against Us, however arising, for which We are found or admit to be
liable, the amount of damages payable to You in respect of any loss that You
sustain will be an amount not exceeding the total amount of fees rendered by Us
in respect of the supply of the Products or Services.
i.
You will indemnify and
continue to indemnify Us against any liability, loss, damage, claim, action,
demand, costs or expenses incurred or suffered by Us, including but not limited
to:
i.
any breach of these
Terms;
ii.
any breach of any laws
by You;
iii.
any act or omission
(negligent or otherwise) by You; or
iv.
any action or trespass
resulting from Us reclaiming any unpaid Products from You.
11.
Intellectual
Property Rights
a.
Intellectual property rights
includes copyright, trade mark, design, patent, semiconductor or circuit layout
rights, know how, trade or other proprietary rights or any rights to
registration of such rights or protected by statute (“Intellectual Property
Rights”)..
b.
You will retain
ownership of any pre-existing Intellectual Property Rights in materials
provided by You to Us for use by Us for the purpose of providing Products, software
and/or Services.
c.
We will retain
ownership of any pre-existing Intellectual Property Rights in materials,
information, tools, and methodologies provided by Us for the purposes of
providing the Products, software and/or Services (or undertaking any
improvements to the Products, software and /or Services).
d.
You indemnify Us
against any claims of infringement of any Intellectual Property Rights or
misuse of a third party’s confidential information brought against Us as a
result of the provision of Products, software and/or Services in relation to these
Terms or arising directly or indirectly from the use of any materials or
information provided to Us by You.
12.
Confidentiality
a.
You agree not to
disclose any information provided by Us to You relating to Us and Our related
entities that we may reasonably regard as confidential or commercially
sensitive (including without limitation Our pricing information) unless you can
establish the information was:
i.
at the time of
disclosure, in the public domain
ii.
subsequent to
disclosure, entered into the public domain other than through the breach of a
duty owed to Us; or
iii.
required to be
disclosed by law
b.
We will use reasonable
endeavours to preserve the confidentiality of information supplied to Us by You
that You designate as confidential information. Nothing in these Terms will
impose on Us the obligation not to disclose or use information already known to
Us prior to its disclosure to Us by You, or lawfully received by Us from a
third party, or information published at the date of such disclosure, or
information which enters the public domain through no fault of Your own, or is
to be disclosed by law.
c.
You indemnify Us
against any claims in respect of a breach of Your confidentiality obligations
under these Terms.
13.
Force
Majeure
a.
We will not be in
default or breach of these Terms for failure to perform or any delay in
performing any of Our obligations as a result of any force majeure event,
including war, flood, fire, explosion, riot, insurrection, blacklisting,
boycott or sanctions however incurred, civil commotion, strike, lockout,
industrial dispute or other differences with workmen, shortage of utility,
facility, material or labour, freight embargo, transportation delay, breakdown
or accident, act of terrorism, act of God, governmental regulation or direction
or any other cause beyond Our reasonable control.
14.
Miscellaneous
a.
None of Our employees,
servants or agents are authorized to alter, vary or waive these Terms (or any
of them) by oral agreement. Any variation to these Terms must be made and agreed
in writing.
b.
Unless otherwise
specified, these Terms contain the entire agreement between Us and You and
supersede all prior representations and understandings made by either party at
any time whether orally or in writing.
c.
Every provision of
these Terms is independent of the others. Any provision which is prohibited or
unenforceable in any jurisdiction will be ineffective to the extent only of
such prohibition or unenforceability, and the other provisions will remain in
force.
d.
Unless otherwise
notified, the address of each party for the purpose of notices is the address
set out below:
i.
for Us: 77 Magill Road,
Stepney SA 5069; Facsimile: (08) 8362 8400.
ii.
for You: the address
and facsimile number (if any) specified in the Schedule or order.
e.
If We fail to exercise
any rights arising from any breach of these Terms it shall not be a waiver of
such rights or of any rights relating to any subsequent or other breach.
f.
These Terms are
governed by the laws of South Australia and the parties submit to the
non-exclusive jurisdiction of the courts of that State.
15.
Special
Conditions
a.
The parties will comply
with the special conditions (if any) set out in the Schedule ("Special
Conditions").
b.
Where any Special
Condition conflicts with any other provision of these Terms, the Special
Condition will prevail to the extent of the inconsistency.
