- Definitions: In these terms – “Seller” means HC ATM Group Pty Ltd; “Buyer” means the entity purchasing the Goods, including any successors thereof; “Goods” means the goods, products and materials manufactured, imported, supplied and or delivered by the Seller to Buyer; “Contract” means the contract entered by the Seller and Buyer for the supply of Goods, as accepted by the Buyer whether expressly or impliedly, including by actual acceptance of delivery of the Goods – which these Terms and Conditions form an integral part thereof unless otherwise confirmed in writing by Seller.
- Payment: Unless otherwise specified in writing on the face hereof, payment for the Goods shall be due on or prior to the delivery date and no discount may be taken or for a Buyer with a pre-approved account with the seller, payment is due within 30 days from the end of the month of the invoice date. Payments received after the due date hereof shall bear a service charge from the maturity date of said invoice date at the maximum lawful interest rate applicable. All payments shall be made in the same currency as mentioned in this contract to the Seller, at its designated bank account as specified on the face of this invoice unless otherwise designated by Seller.
- Prices: Prices set forth herein are Ex-works (Incoterms 2000 as amended) unless specifically agreed otherwise in writing between Seller and Buyer. Prices are based, inter alia, on production costs for supplies, labour, deliveries, duties and services current on the order date. In the event of material increase in any such costs, Seller reserves the right either to adjust the prices for Goods accordingly, or to cancel a certain part of the sales relating to undelivered Goods.
- Duties and Taxes: Duties, taxes, fees, levies and other compulsory payments arising here from, shall be borne by, and paid on the Buyer’s account, unless otherwise expressly stated in this invoice.
- Delivery: a) Any delivery dates noted on the face hereof are subject to reasonable adjustment. Delivery or tender of delivery of the Goods within (7) seven working days before or after the date specified on the face hereof shall be deemed timely delivery. Thereafter, shipment or tender of delivery prior to receipt of written cancellation from Seller shall constitute good delivery. b) The acceptance of shipment by a common carrier or by any licensed public truckman shall constitute proper delivery. Risk in the Goods shall pass to Buyer on delivery, or upon any collection of the Goods by the Buyer or the passing of title in the Goods, whichever occurs first. c) Seller shall not be liable for over or under delivery of bulk Goods provided that such delivery does not exceed 10% of the ordered quantity. d) All freight, express, insurance and delivery charges shall be paid by the Buyer, unless otherwise specified in writing on the face of the invoice.
- Retention of Title. a) Title shall pass to the Buyer only upon full payment by Buyer for the Goods and/or of any payable debt by Buyer to Seller. Buyer shall, at Seller’s request, take any measures necessary under applicable law to protect Seller’s title in the Goods, and lawfully notify the Buyer’s present or potential creditors of Seller’s title and interest to the Goods (b) Buyer acknowledges that so long as title has not been transferred in the Goods, it holds the Goods as bailee and fiduciary agent for the Seller and shall safely and securely store and keep the Goods separate and in good condition, clearly showing the Seller’s ownership of the Goods and shall respectively record the Seller’s ownership of the Goods in its books. (c) Notwithstanding the above, Buyer may sell the Goods as fiduciary agent for the Supplier to a third party in the normal course of business by way of bona fide sale at market value, whereby the proceeds of such sale to the extent of the amount owing by Buyer to Seller at the time of receipt of such proceeds be held by Buyer on trust for Seller, in a separate account and not be mixed with any other monies until payment in full for all payable debts by Buyer to Seller. (d) In the event that Buyer uses the Goods in some manufacturing or construction process of its own or some third party, then Buyer shall hold such part of the proceeds of such manufacturing or construction process, as relates to the Goods, on trust for the Supplier, whereby such proceeds shall be deemed equal to the amount owed by Buyer to Seller on receipt of such proceeds, and must be kept in a separate account and not be mixed with any other monies.
- Liability: a) Unless the Seller shall within 30 days after delivery of the Goods, receive from the Buyer written notice of any matter or thing by reason whereof it is alleged that Goods are not in accordance with the Contract, the Goods delivered shall be deemed to be in all respects in accordance with the Contract and the Buyer shall be entitled neither to reject the same nor to raise any claim for damages or for other remedy in respect of any alleged negligence, breach of warranty and/or any condition. b) In any claim, brought subject to the conditions above, Buyer must prove to the satisfaction of Seller that Buyer followed Seller’s instructions for use, care, storage and maintenance of the Goods. c) Unless otherwise specifically restricted by mandatory applicable law, Seller’s liability under any claim and in connection with any possible allegation, whether based on negligence or on any other cause of action, shall be limited to either (1) the replacement of the Goods or the supply of equivalent goods; (2) the repair, or payment of the cost of repair, of the Goods; or (3) credit in an amount equal to the purchase price specified on this invoice or in an amount of equivalent goods, at Seller’s sole option. Buyer acknowledges, that the remedy available to him as specified herein, is in lieu of any remedies that may be otherwise available to him, now or in the future, whether in law or in equity, relating to any loss or damage, whether directly or indirectly, arising from the purchase and/or the use of Goods, including without limitation, any actual or contingent damages, loss of production, loss of profit, loss of use, loss of contracts or any other consequential or indirect loss whatsoever. d) Buyer, for himself and for any other party which may claim either under or through Buyer, or independently of Buyer, including Buyer’s employees, directors, officers, representatives and personnel, shall indemnify the Seller and hold it harmless, from and against any claim or liability for damages for negligence including but not limited to, any claim in connection with the design, manufacture, use, care, storage, delivery, application or maintenance of any Goods alleged infringement of copyright, patents, registered designs or trade marks, whether alleged to have been committed by Seller or by any other person whatsoever. Buyer’s undertaking as specified in these subsections 7(c) and 7(d) shall extend and inure to the benefit of Seller and of Seller’s successors at any time, as well as to Seller’s personnel, representatives, managers, directors and officers. e) Any and all warranties, undertakings, guarantees or assurances provided herein by Seller, are specifically limited to Buyer herein, and not imputed by Seller, whether directly or indirectly, expressly or impliedly, to any other person or entity, including any subsequent buyer or user, bailee, licensee, assignee, employee and agent of Buyer
- Independent Delivery: Each delivery shall be considered as separate and the failure of any delivery shall not vitiate a contract as to other deliveries.
- Warranty: a) Seller warrants only that the merchandise sold hereunder meets the descriptions or specifications stated herein, subject to use, storage and application thereof in accordance with and based on Seller’s standard tolerances and recommendations. b) THE WARRANTY SET FORTH HEREIN IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE, AND ALL OTHER OBLIGATIONS OR LIABILITIES WHICH MAY BE IMPUTED TO SELLER, WHICH ARE SPECIFICALLY AND EXPRESSLY EXCLUDED HEREUNDER. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF ANY AND ALL GOODS SPECIFIED OR CONTEMPLATED BY THIS CONTRACT NO WARRANTY IS MADE WITH RESPECT TO ANY OF THESE GOODS WHICH HAVE BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, IMPROPER CARE, IMPROPER STORAGE, IMPROPER MAINTENANCE, ABUSE OR MISUSE.
- Advice: Subject to clause hereof, any advice, recommendation, information, assistance or service provided by Seller in relation to the Goods or in respect to their use or application is given in good faith, shall be accepted without liability on the part of Seller and it shall be the responsibility of the Buyer to confirm the accuracy and reliability of the same in the light of the use, of which, the Buyer makes or intends to make of the Goods
- Default: Upon failure of Buyer to pay any amounts due hereunder, or in the event of any breach or anticipated breach by Buyer of any contract with Seller, or if Buyer shall either (i) become insolvent, (ii) call a meeting of its creditors, or (iii) make any assignment for the benefit of creditors, or if (iv) a bankruptcy, insolvency, reorganization, receivership or arrangement proceeding shall be commenced by or against Buyer, then, in each such occasion, Seller may, at its sole option (1) cancel this and any other contract with Buyer (without waiving any of Seller’s rights to pursue any remedy against Buyer); (2) claim return of any Goods in the possession of Buyer the title of which has not passed to Buyer, and enter the Buyer’s premises (or the premises of any associated company or agent where such Goods are located) without liability for trespass or any resulting damage to retake possession of such Goods; (3) defer any shipment hereunder; (4) declare forthwith due and payable all outstanding bills of Buyer under this or any contract; and (5) sell all or any part of the undelivered Goods, without notice at public and/or on private sale, while the Buyer shall be responsible for all costs and expenses of such sale and for any deficiency.
- Force Majeure: If the Seller shall be prevented from producing or effecting deliveries of the Goods or any of them by reason of any of the following causes, namely, act of God, insurrection, riot, war hostilities, terror attacks, warlike operations, piracy, arrests, restraints or detainments by any competent authority, strikes or combinations or lock-out of workmen, fire, floods, droughts, earthquakes, permanent or temporary delay or inability to obtain labor, material or services through Seller’s usual and regular sources, or any other circumstances (whether of a nature similar to those specified, or not) beyond the control of the Seller, then, in each such case, the obligation of the Seller to effect deliveries hereunder shall be suspended until after such prevention shall cease to continue. Should any deliveries under this contract be suspended under this clause, the Buyer shall nevertheless accept delivery and pay for such Goods as the Seller shall be able to deliver in accordance with the period(s) of shipment named in this contract. Seller shall not be liable for, and be relieved from, any loss or damages of any kind resulting from the causes mentioned above.
- Cancellation: orders manufactured in whole or in part, to the specifications of Buyer, may not be cancelled, except with the Seller’s written consent and on terms which will indemnify Seller against all losses.
- Entire Agreement: This Contract merges and incorporates the entire terms and conditions for sale of the Goods. No modification or alteration of any provision hereof shall become valid and effective except upon a written instrument duly signed by the Seller. No waiver by either party of any default of the other party shall be deemed a waiver of any subsequent or other default.
- No-Assignment: No rights of Buyer hereunder or arising out of this Contract may be assigned without the express written consent of the Seller.
- Arbitration: Any dispute arising out of or in the connection with this Contract shall be settled by arbitration in Queensland. Should the parties fail to agree on the identity of the nominated arbitrator within 15 days following demand by either of the parties, the Chairman of the local Bar Association shall appoint same within 21 days following an application by either of the parties to that end. This provision shall survive any termination or cancellation of any of the terms and conditions herein, and shall be regarded as a separate and independent arbitration agreement between Buyer and Seller for all purposes and intents in connection with the subject matter specified on the face of this invoice.
- Law and Jurisdiction: This Contract shall be subject to and shall be governed by the substantive laws of Queensland, and jurisubject to clause 15, shall rest solely and exclusively in the competent courts of Queensland.
