CBI Electric: Australia

Conditions of Sale

1. Interpretation
  In these conditions:
(a) “Seller” means HEINEMANN ELECTRIC PTY trading as CBI-electric: Australia ABN 66 007 308 670 of 27 Wedgewood Rd, Hallam, Victoria 3169, which is the seller of the goods.
(b) “Buyer” means the purchaser of the goods specified in the seller’s quotation or in the buyer’s orders for the goods.
(c) “Goods” means the products and, if any, services, specified in the seller’s quotation or in the buyer’s order for the goods.
(d) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Australian Consumer Law) and which by law cannot be excluded, restricted or modified.
2. General
  These conditions (which shall only be waived in writing signed by the seller) shall prevail over all conditions of the buyer’s order to the extent of any inconsistency.
3. Terms of sale
  The goods and all other products sold by seller are sold on these terms and conditions.
4. Seller’s quotations
  Unless previously withdrawn, seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date. The seller reserves the right to refuse any order based on its quotation within 14 days after the receipt of the order.
5. Packing
  The cost of any special packing and packing materials used in relation to the goods are at the buyer’s expense notwithstanding that such cost may have been omitted from any quotation.
6. Shortage
  The buyer waives any claim for shortage of any goods delivered if a claim in respect for short delivery has not been lodged with the seller within seven (7) days from the date of receipt of goods by the buyer.
7. Drawings, etc
  7.1 All specifications, drawings, and particulars of weights and dimensions submitted to the seller are approximate only and any deviation from any of these things does not vitiate any contract with the seller or form grounds for any claim against the seller.
7.2 The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the goods or of the description applied to the goods.
7.3 Where specifications, drawings or other particulars are supplied by the buyer, the seller’s price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by seller and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.
8. Intellectual Property
  The specification and design of the Goods (being all intellectual property, including but not limited to, copyright, design right, trademarks or other intellectual property) remains the property of the seller and other than by use of the Goods for their ordinary purpose is not to be copied, used or replicated by the buyer except with the express consent in writing of the seller.
9. Performance
  Any performance figures given by the seller are estimates only. The seller is under no liability for damages for failure of the goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
10. Purchase for Re-Supply
  The buyer acknowledges that the products are acquired and the buyer has held itself out to the seller as acquiring the products for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land.
11. Delivery
  11.1 The delivery times made known to the buyer are estimates only and the seller is not liable for late delivery or non-delivery.
11.2 The seller is not liable for any loss, damage or delay occasioned to the buyer or its customers arising from late or non-delivery or late installation of the goods.
11.3 The seller may at its option deliver the goods to the buyer in any number of instalments unless there is an endorsement overleaf to the effect that the buyer will not take delivery by instalments.
11.4 If the seller delivers any of the goods by instalments, and any one of those instalments is defective for any reason:
(a) It is not a repudiation of the contract of sale formed by these conditions; and
(b) The defective instalment is a severable breach that gives rise only to a claim for compensation.
12. Passing of Risk
Risk in the goods passes to the buyer upon the earlier of:
  (a) Actual or constructive delivery of the goods to the buyer;
(b) Collection of the goods from the seller or any bailee or agent of the seller by the buyer’s agent, carrier or courier; or
(c) Unless otherwise agreed in writing delivery will be ex-warehouse.
13. Loss or damage in transit
  13.1 The seller is not responsible to the buyer or any person claiming through the buyer for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the seller is legally responsible for the person who caused or contributed to that loss or damage).
13.2 The seller must provide the buyer with such assistance as may be necessary to press claims on carriers so long as the buyer:
(a) Has notified the seller and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and
(b) Lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the goods.
14. Guarantee and Sellers Liabilities
  14.1 The seller is not responsible to the buyer or any person claiming through the buyer for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the seller is legally responsible for the person who caused or contributed to that loss or damage).
  (a) Defects have arisen solely from faulty materials or workmanship;
  (b) The damage does not arise from:
(i) Improper adjustment, calibration or operation by the buyer;
(ii) The use of accessories including consumables, hardware, or software which were not manufactured by or approved in writing by the seller;
(iii) Any contamination or leakages caused or induced by the buyer;
(iv) Any modifications of the goods which were not authorised in writing by the seller;
(v) Any misuse of the goods;
(vi) Any use or operation of the goods outside of the physical, electrical or environmental specifications of the goods;
(vii) Inadequate or incorrect site preparation;
(viii) Inadequate or improper maintenance of the goods; and
(ix) Fair wear and tear of the product in an environment in respect of which the seller has informed the buyer in catalogues or other product literature that the period of usefulness of the product is likely to be shorter than 12 months.
14.2 If the goods are not manufactured by the seller the guarantee of the manufacturer of those goods is accepted by the buyer and is the only guarantee given to the buyer in respect of the goods. The seller agrees to assign to the buyer on request made by the buyer the benefit of any warranty or entitlement to the goods that the manufacturer has granted to the seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
14.3 The seller is not liable for and the buyer releases the seller from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the seller and the responsibility for any claim has been specifically accepted by the seller in writing. In any event the seller’s liability under this paragraph is limited strictly to the replacement of defective parts in accordance with paragraph 14.1 of these conditions.
14.4 Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the seller’s negligence or in any way whatsoever.
14.5 Subject to clause 14.6 and to the extent permitted by the Australian Consumer Law and relevant state legislation, the sole obligation of the seller under this agreement is to use its best endeavours to provide the products or to repair the products or repair or replace (at the seller’s discretion) any part of a product which is found to be defective during the period of warranty.
14.6 If any products supplied pursuant to this agreement are supplied to the customer as a “consumer” of goods or services within the meaning of that term in the Australian Consumer Law as amended or relevant state legislation the consumer will have the benefit of certain non-excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the Trade Practices Act or similar legislation is so conferred. However, if the product is a product not ordinarily acquired for personal, domestic or household use or consumption, pursuant to section 64A of the Australian Consumer Law and similar provisions of relevant state legislation the seller limits its liability to payment of an amount equal to the lowest of:
  (a) Has notified the seller and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and
  (b) Lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the goods.
14.7 Subject to clause 14.6, the seller is not to be liable for default or failure in performance of its obligations pursuant to this agreement resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials, labour or transportation or any other cause beyond the reasonable control of the seller.
15. Loans and Hire
  15.1 Any equipment loaned or hired out by the company which is not returned to the company within the specified loan or hire period shall be deemed as sold, and the list price of the equipment shall become due and payable by the recipient.
15.2 Any equipment loaned or hired out by the company shall be returned by the recipient in the original packing, and in original condition, fair and reasonable wear and tear excepted.
15.3 Any returned equipment found damaged or defective, due to reasons not covered by the company’s standard warranty provisions, shall result in the recipient being charged for repair charges, or the cost of the equipment, whichever is the lesser.
15.4 Return freight, if applicable, will be prepaid by the recipient.
16. Prices
  16.1 Unless otherwise stated all prices quoted by vendor are net, exclusive of Goods and Services Tax (GST).
16.2 Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production ruling on the date is made.
16.3 If the seller makes any alterations to the price of the goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the buyer’s account.
17. Payment
  17.1 The purchase price in relation to goods is payable net and payment of the price of the goods plus GST must be made on or before the thirtieth day of the month next following the delivery of the goods unless other terms of payment are expressly stated in writing by the seller.
17.2 In the event of late payment the buyer shall pay to the seller interest on the amount owing from the due date until payment at the rate of 15% per annum.
17.3 They buyer shall also pay on default by the buyer all costs and expenses incurred by the seller in exercising the seller’s rights of recovery from the buyer and the buyer indemnifies the seller against any losses resulting from any default by the buyer.
18. Rights in relation to goods
  18.1 The seller reserves the following rights in relation to the goods until all accounts owed by the buyer to the seller are fully paid:
(a) Ownership of the goods;
(b) It must either pay the amount of the proceeds of re-supply to the seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the seller;
(c) Any accessory or item which accedes to any of the goods by an act of the buyer or of any person at the direction or request of the buyer becomes and remains the property of the seller until the seller is paid in accordance with clause 18.1 when the property in the goods (including the accessory) passes to the buyer;
(d) If the buyer fails to pay for the goods within the period of credit (if any) extended by the seller to the buyer, the seller may recover possession of the goods at any site owned, possessed or controlled by the buyer and the buyer agrees that the seller has an irrevocable license to do so.
18.2 The seller must provide the buyer with such assistance as may be necessary to press claims on carriers so long as the buyer:
18.3 Notwithstanding the provisions above the seller shall be entitled to maintain an action against the buyer for the purchase price and the risk of the goods shall pass to the buyer upon delivery.
18.4 To protect the seller’s security interest in the goods until payment the seller may choose to register this agreement under the Personal Properties Securities Act 2009. The buyer agrees to do all things necessary to facilitate such registration.
18.5 The buyer agrees to sign documents or do all things necessary to perfect the seller’s rights under this agreement and appoints the seller as the buyer’s attorney to sign any document or do anything that may reasonably be required to enforce the seller’s rights on default.
19. Storage
  The seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the buyer within fourteen days of a request by the seller for such instructions. The parties agree that the seller may charge for storage from the first day after the seller requests the buyer to provide delivery instructions.
20. Returned Goods
  20.1 The seller is not under any duty to accept goods returned by the buyer and will do so only on terms to be agreed in writing in each individual case.
20.2 If the seller agrees to accept returned goods from the buyer under paragraph 20.1 of this clause, the buyer must return the goods to the seller at the seller’s place of business referred to at the head of these conditions.
21. Goods Sold
  All goods to be supplied by the seller to the buyer are as described on the purchase order agreed by the seller and the buyer and the description on such purchase order modified as so agreed prevails over all other descriptions including any specification or enquiry of the buyer.
22. Minimum Sales Order Values
The following minimum values will apply to orders supplied by the company:
  (a) $100.00 for goods collected and charged at our trade sales counter. If goods are collected and paid for in cash, no minimum charge will apply.
(b) $300.00 for goods delivered to a customer’s premises.
23. Cancellation
No order may be cancelled except with consent in writing and on terms which will indemnify the seller against all losses.
24. Place of contract
  24.1 The contract for sale of the goods is made in the State of Victoria, Australia.
24.2 The parties submit all disputes arising between them to the courts of Victoria and any court competent to hear appeals from those courts of first instance.