1. Definitions and Interpretation
"ACL" means the Competition and Consumer Act 2012 (Cth).
"Agreement" means the agreement between the Company and Purchaser and includes these Terms.
"Company" means ifm efector pty ltd.
"Goods" means items quoted and any associated goods, equipment, inventory, accessories, parts, services and tools supplied by the Company to the Purchaser.
"GST" has the same meaning as under the GST Law and means the Goods and Services Tax imposed under the GST law.
"Intellectual Property Rights" means any intellectual or industrial property, including without limitation, any patent, trade mark or service mark, copyright, registered design, trade secret or confidential information or any licence or other right to use or to grant the use of any of the foregoing or to be the registered proprietor or user of any of the foregoing (whether registered or unregistered).
"Order" means any order placed by the Purchaser with the Company for Goods.
"PPSA" means the Personal Property Securities Act 2009 (Cth) and the terms “attaches”, “collateral”, “proceeds” “purchase money security interest” and “security interest” have the meanings given to them in the PPSA, and “perfection” and “perfecting” have a meaning corresponding with the definition of “perfected” in the PPSA.
"Purchaser" means the person to whom any quotation is made and includes any person acquiring goods or services from the Company.
"Terms" means these Terms and Conditions of Sale.
In the interpretation of the Agreement unless the contrary intention appears:
headings are for convenience only and do not affect the interpretation of the Agreement;
the words 'includes' or 'including' will not limit whatever follows;
a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa; the singular includes the plural and vice versa; a reference to any gender includes a reference to all other genders;
a reference to any legislation includes a reference to any modification or re-enactment; and
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning
A reference to the Company or the Purchaser includes any person acting for or on behalf of the Company or the Purchaser, including its directors, officers, agents, employees or contractors.
2. Acceptance of Agreement
Any quotation made by the Company is not an offer to sell goods or to provide services.
Without limiting the way in which the Purchaser may become bound by the Agreement, the Purchaser will become bound by the Agreement by placing an Order with the Company for the supply of Goods.
Where more than one Purchaser has entered into the Agreement, the Purchasers shall be jointly and severally liable for their obligations under the Agreement.
The Purchaser acknowledges that once an order has been placed, the Company is under no obligation to accept any variation to that Order requested by the Purchaser. If the Company does accept a variation to an Order, the Purchaser acknowledges and agrees that the Company may vary the delivery date for the Goods and the price as a result of that variation.
No cancellation of an order will be accepted after delivery of the goods or after seven (7) days from the date shown on the Purchaser's order, whichever occurs earlier unless agreed to in writing by the Company.
Any agreement to cancel or vary a Quotation or an order pursuant to clause 3(b) shall be subject to the Company being compensated for any costs incurred with respect to the order prior to the cancellation or variation.
Any Order for customised Goods or Goods which must be specially sourced by the Company for the Purchaser (not regular stock) cannot be cancelled once the production or sourcing of these Goods has commenced.
The Company may in its sole discretion refuse to supply any Order for any reason whatsoever.
Each order placed by the Purchaser shall be a representation to the Company that the Purchaser is solvent and able to pay the Company's accounts as and when they are due.
A Purchaser’s order placed with reference to a quotation provided by the Company will not bind the Company until the Company accepts the Purchaser's order which will be evidenced by the supply of Goods and services by the Company to the Purchaser or by the commencement of supply of Goods or the provision of services. The Company reserves the right to refuse at its absolute discretion any order based on a quotation within seven (7) days after the Order is received and at any time to refuse to accept or proceed with any Order should the Purchaser's trade or financial reference be unsatisfactory to the Company
Any quotation made by the Company will remain valid for a period of thirty (30) days from the date on which it was made.
Any quotation made by the Company is indicative and approximate only and the Company is not bound by that quotation.
The prices for the supply of any Goods or services will be the price charged by the Company at the date of delivery plus the amount which the Company is required to pay on account of (as applicable) freight, transportation, exchange, insurance premiums and any customs duties, excise, taxes or charges which may be levied by any governmental authority (domestic or foreign). Unless otherwise agreed in writing, in the event of any increase in these rates or in the price of the Goods quoted to us by our suppliers before acceptance of an Order or prior to delivery of the Goods to the Purchaser then the cost to the Company entailed by such increase will be added to the purchase price and be payable by the Purchaser.
To the maximum extent permitted by law:
Any representation, promise, statement or description made by or on behalf of the Company is expressly excluded and the Purchaser acknowledges that it has relied solely upon its own inspection, skill and judgement to place the Order for the supply of Goods or services from the Company.
All photographs, weights, illustrations, dimensions and any other particulars given in or accompanying a quotation or contained in descriptive literature provided by or on behalf of the Company are approximate only and given by way of identification only. The use of such material will not constitute a sale by description between the Company and the Purchaser and any deviations from such material will not vitiate this Agreement or entitle the Purchaser to make any claim made against the Company.
Clerical errors are subject to correction
The Purchaser warrants to the Company that any Goods manufactured, constructed or supplied 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 will not infringe any third party’s Intellectual Property Rights. The Purchaser irrevocably and unconditionally agrees to indemnify and keep indemnified the Company from and against any loss, damage, expense, cost or other liability suffered or incurred by the Company arising out of any allegation by a third party that the designs, drawings or specification supplied to the Company by or on behalf of the Purchaser infringes its Intellectual Property Rights.
6. Terms of Payment
Payment for invoiced amounts is to be made in full within thirty (30) days following month of invoicing (unless otherwise agreed to in writing).
All payments will be made by direct debit, electronic funds transfer, cash, company cheque or bank cheque.
Any agreement by the Company to extend the terms of credit or other indulgence granted to the Purchaser shall not affect the Purchaser's liability to account to the Company.
If the Purchaser defaults in making payment in accordance with these Terms, the Company may in its absolute discretion and without notice:
charge the Purchaser compound interest calculated on that portion of the Purchaser's account overdue at two per cent (2%) above the penalty rate fixed under the Penalty Interest Rates Act 1983 (Vic) from time to time, calculated and payable daily from the due date until the date on which the invoice is paid in full; and
require the Purchaser to reimburse the Company for all collection costs including (but not limited to) legal costs incurred by the Company, calculated on a solicitor and client basis, as a consequence of the Company instructing its solicitor to provide advice to it in connection with the default and/or to institute such recovery process as the Company in its absolute discretion decides and any other costs, expenses, losses or damages arising out of a breach of the Agreement.
Unless specifically agreed by the Company in writing before dispatch of Goods, no deduction is to be made from payment for any reason including without limitation retention monies to guarantee performance of a contract.
7. Credit Information
The Purchaser irrevocably authorises the Company, its servants and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Purchaser and/or its directors from time to time including the making of enquiries with persons nominated as trade references, the bankers of the Purchaser, any other credit provider or a credit reporting agency (hereinafter called "the Information Sources").
To the fullest extent permitted by the relevant privacy laws, the Purchaser:
authorises the Information Sources to disclose to the Company such information concerning the Purchaser which is within their possession and which is required by the Company; and
agrees that the information provided on any credit application signed by the Purchaser concerning the Purchaser may be disclosed by the Company to a credit reporting agency or any other interested person.
The Purchaser acknowledges that any credit application approved by the Company for the Purchaser related to trading between the Company and the Purchaser is granted by the Company on the basis of its reliance on information supplied by and representations made on behalf of the Purchaser and, in particular, on the information disclosed by the Purchaser in relation to the ownership of the Purchaser.
Any credit facility granted by the Company to the Purchaser shall continue until terminated by the Company at its sole discretion. Termination by the Company of any credit facility shall be either verbal or in writing.
8. Acceptance and Delivery
Unless otherwise specified by the Company in writing, the point of delivery of the Goods will be at the Purchaser's premises.
The Purchaser must inspect the Goods immediately on the arrival and must notify the Company in writing within seven (7) days from the date of delivery of any Goods alleged not to be in accordance with these Terms. If the Purchaser fails to give such notice, the goods will be deemed to be in all respects in accordance with these Terms and the Purchaser must accept and pay for the Goods.
Insurance, packaging & freight handling (IPH) will be charged to the Purchaser.
A delivery docket, certificate or equivalent signed by a representative of the Purchaser shall be conclusive evidence of delivery of the Goods.
The Company may resell any Goods not taken by the Purchaser within seven (7) days from the date of delivery and at its option deem the contract repudiated or by subsequently substituting other goods treat the contract as subsisting.
9. Delay in Delivery and Force Majeure
The time of delivery in any quotation represents the time at which the goods are to be ready for despatch from the Company's premises and the Company is to be allowed the further time necessary to cover transit points of delivery. The Company does not accept orders under penalty for late delivery.
Delivery and availability dates are estimates and approximate only and although the Company will make all reasonable efforts to maintain these estimates the Company will not be liable in any way should delivery not be made on the estimated deliver and availability dates .
If the Company does not receive forwarding instructions sufficient to enable it to dispatch the Goods within fourteen (14) days of the Company notifying the Purchaser that the Goods are ready, the Company will be entitled to issue an invoice for the full purchase price from that date and the Purchaser will be liable for storage charges payable monthly on written demand. The Purchaser acknowledges that any such storage will be at the Purchaser’s risk.
If for any cause beyond the Company's control, including but without limitation, any act of God, war, strike, lock out, industrial dispute, governmental or semi-governmental award, enactment, priority or restriction, fire, flood, storm or tempest, delay in obtaining licences, transport, labour, or materials, accidents, damage to the Company's works or business of those of its suppliers, the Company is prevented from delivering Goods at the time stipulated or performing an obligation under these Terms, the Company will be entitled at its option either to extend the time for delivery or performance for a reasonable period or to rescind the contract and the Purchaser will not have any claim for damages of whatsoever nature and must pay to the Company the cost for all Goods delivered and/or services performed prior to the date of such rescission including all expenses incurred and monies paid by the Company in connection with the contract without set-off or deduction.
10. Title and Risk
Title to the Goods to be delivered will not pass to the Purchaser until payment in full for those Goods (together with any other money owing by the Purchaser to the Company) is received by the Company.
Until payment is made in accordance with clause 10(a), any Goods in the Purchaser's possession will be held as bailee and the Purchaser shall not create or allow to be created any security interest as defined by PPSA or any other form of encumbrance over the Goods.
Notwithstanding that the title to the Goods has not passed to the Purchaser, all Goods will be at the Purchaser’s risk upon delivery and the Purchaser will hold the Company indemnified against any claim, liability, damage or injury of whatsoever nature relating to the goods until payment is made in accordance with clause 10(a).
Until the goods are paid for in full, the Purchaser:
must protect and insure the Goods;
must separately store the Goods and clearly mark the Goods as being the property of the Company; and
may sell the Goods in the ordinary course of business, but only in its capacity as fiduciary agent of the Company. All proceeds received directly or indirectly from any dealing with the goods are held by the Purchaser on trust for the Company until the Purchaser’s liability to the Company is fully discharged.
The Purchaser irrevocably authorises and licenses the Company to enter any premises owned or occupied by the Purchaser, or any other place where goods are stored, to inspect or repossess Goods in accordance with these Terms.
The Purchaser acknowledges that The Company has, under these Terms, security interests in the Goods until title in the goods passes to the Purchaser in accordance with clause 10, subject to the PPSA. Each such security interest secures payment by the Purchaser of all amounts owing from time to time by the Purchaser to the Company, whether on account of the supply of Goods or otherwise. To avoid any doubt, each such security interest attaches to the proceeds of collateral constituted by the Goods, notwithstanding that the Purchaser may have dealt in any way with the goods (including by selling as expressly permitted under clause 10(d)(iii))
Each security interest arising under these Terms attaches to Goods when the Purchaser obtains possession of the Goods. The Company and the Purchaser acknowledge that they have not agreed that any such security interest attaches at any later time.
The Purchaser agrees to implement, maintain and comply in all material respects with, procedures for the perfection of each security interest arising under these terms and conditions under the PPSA, including taking all steps necessary:
for the Company to obtain the highest ranking priority possible in respect of each such security interest (such as perfecting a purchase money security interest); and
to reduce as far as possible the risk of a third party acquiring an interest free of the Company's security interests in the Goods.
Any time the Purchaser makes a payment to the Company, irrespective of whether the payment is made under or in connection with Goods or otherwise under these Terms, the Company may apply that payment:
first, to satisfy any obligation that is not secured;
second, to satisfy an obligation that is secured, but not by a purchase money security interest; and
third, to satisfy an obligation that is secured by a purchase money security interest for that obligation and using proceeds from the sale of the collateral subject to that purchase money security interest; and
fourth, to satisfy an obligation that is secured by a purchase money security interest using funds or proceeds from any source; or, despite the foregoing, in any manner the Company sees fit.
If chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising under these Terms, the Purchaser agrees that following provisions of the PPSA will not apply to the enforcement of that security interest: Sections 95 (to the extent that it requires The Company to give a notice to the Purchaser), 120, 121(4), 125, 128, 130 (to the extent that it requires the Company to give a notice to the Purchaser), 132(3)(d), 132(4), 135, 142 and 143.
Without limiting the operation of clause (e):
The Company need not give any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and cannot be excluded; and
if The Company is required to give a notice to the Purchaser under the PPSA, and the Purchaser may, under the PPSA, waive the Purchaser's right to receive that notice, then the Purchaser hereby waives that right.
12. Return of Goods
To the maximum extent permitted by law, it is a condition of sale of the Goods that the Company may elect to, but is not otherwise obligated to accept in any case, the return of Goods for credit. The following conditions relating to the return of Goods for credit apply to all Goods returned with the approval of the Company:
Prior arrangements must be made for all goods to be returned for any reason. Authorisation must be obtained from the Company in the form of a Goods Return Authorisation (GRA) number issued by the Company.
The Purchaser’s request for credit or other documentation accompanying the goods must quote the GRA number, the original invoice number and the date on which the Goods were supplied.
Goods not accompanied by a GRA number and or proof of purchase will not be accepted and will be returned to the Purchaser with freight charged to the Purchaser.
Goods returned must be in a clean and sterile condition.
Where Goods were originally supplied in a special manufacturer’s carton, any return must be made in that original carton and the Goods must be in their original and unmarked condition, complete with any instruction sheets supplied.
Outward and inward freight and transport charges are the responsibility of the Purchaser. If not prepaid by the Purchaser, freight will be deducted from the amount of credit.
The following goods cannot be returned for credit under any condition:
any merchandise specially or custom made, including items cut to length;
any goods made, or purchased to a firm and irrevocable order;
any goods that have been exposed to hazardous materials and substances, dangerous chemicals, poisons, waste material, pesticides, pollutants (whether airborne or engaged by touch), viruses, germs, diseases, blood, bodily fluids or any other dangerous matter;
any goods altered or damaged by the Purchaser; or
any goods having an invoice value of ten dollars or less.
In respect of Goods delivered to metropolitan and Country areas:
Goods must be returned within seven (7) days of date of dispatch in new condition as supplied.
A restocking fee will be charged as follows:
1-15 days from shipment date -15% [of the invoiced value of the returned goods] ;
16-60 days from shipment date - 25% [of the invoiced value of the returned goods] ; and
61-90 days from shipment date - 30% [of the invoiced value of the returned goods].
No items will be accepted for return after ninety (90) days from date of shipment.
Restocking fees on standard items in original use are:
No responsibility will be accepted for any delays in passing credit caused by Goods being incorrectly branded or returned without adequate identification of both sender and goods returned.
Nothing in this clause 12 affects the statutory obligations of the Company (and corresponding rights of the buyer) which may not be lawfully excluded.
13. Intellectual Property Rights
The parties acknowledge and agree that all Intellectual Property Rights developed by the Company and embodied in or used in connection with the manufacture of the Goods or which may be developed by the Company in connection with the manufacture of the Goods will be and remains the property of the Company
14. ATEX Certification and Australian Standards
The Purchaser of any Goods, supplied by the Company, acknowledges that the Company's products carry an ATEX certification. The Purchaser acknowledges that ATEX certifications do not meet Australian Standards, and that any Goods purchased require independent certification before being used in hazardous areas.
15. Limitation of Liability
To the maximum extent permitted by law, the Company excludes its liability (including, but not limited to, liability in tort, contract and for breach of statute) to the Purchaser or any other person for:
any loss or damage consequential or otherwise (whether contractual, tortious, statutory or otherwise) for any special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, or revenue arising out of or in connection with the provision of the Goods and whether as a result of any breach, default, negligence or otherwise by the Company suffered or incurred by the Purchaser or any other person in relation to the Goods; and
in particular, but without limiting clause 15(a)(i), any loss or damage consequential or otherwise suffered or incurred by the Purchaser or any other person caused by or resulting directly from any failure, defect or deficiency of any kind of or in the Goods; or
a failure by the Purchaser to obtain independent certification of ATEX certified products before using them in a hazardous area.
The Company warrants to the Purchaser that instruments and accessories supplied by it will be free from defects in material and workmanship for a period of 12 months from the original date of purchase of the product. The warranty will include the repair or replacement of a defective product or the provision of credit. The benefits provided by this warranty are in addition to other rights and remedies which you may have under a law in relation to the product to which this warranty relates.
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
If the Purchaser is a consumer as defined in the ACL nothing in this warranty restricts, limits or modifies the Purchaser's rights or remedies against the Company for failure of a statutory guarantee under the ACL and specifically the statement in 15(b) is made in accordance with section 102 of the ACL and only applies if the Purchaser acquires goods from the Company as a Consumer according to the Australian Consumer Law.
If clause 15(c) does not apply, any liability under this warranty is expressly limited at the sole discretion of the Company to:
if relating to Goods, to the replacement of the Goods, the supply of equivalent Goods, the repair of the Goods, payment of the cost of having the goods repaired or replaced or provision of credit; and
if relating to services, the re-supply of the services, or payment of the cost of having the services supplied again
The warranty does not cover:-
electronic tubes and components, illumination sources, items wholly or partly of glass, silica or ceramic material, thermocouples, batteries, electrical elements and reconditioned replacement parts, such as exchange circuit boards;
faults caused by unsuitable or use other than in accordance with instructions or directions provided by the manufacturer or the Company;
faults caused by incorrect installation, misuse, abuse, unauthorised modification, normal wear and tear and inadequate or complete lack of maintenance;
negligence or malpractice by the user; or
loss or theft, nor does coverage extend to damage caused by improper storage conditions, or natural disasters.
During the warranty period, defective products will be repaired, replaced or credit will be provided if:
the Purchaser has contacted the Company, notified the Company in writing of the alleged default and obtained a Goods Return Authorisation (GRA) number; and
the original product is returned to the Company in its original packaging at the below address, together with a dated proof of purchase, the GRA number and details of the Purchaser's return address.
The cost of freight of a defective product to and from the Company or any other such expense is the Purchaser's responsibility. If the freight is not prepaid the cost of the freight shall be deducted from the amount of credit.
All queries relating to warranties should be made using one of the following methods:
ifm efector pty ltd.
Unit C13, 930 Great South Road
Phone: 09 579 6991
Fax: 09 579 9282
These terms and conditions apply to each and every order or request from a Purchaser for the Company's Goods.
If these Conditions which can only be varied, modified or rescinded by written agreement (executed by the Company) differ in any respect from the Purchaser's order or the Company's acceptance or confirmation of the Purchaser’s order then these Conditions will prevail to the extent of the inconsistency.
No agency, partnership, joint venture or independent contractor relationship is intended or created by these Conditions.
Waiver of any of the Company’s rights arising from a beach of these Conditions by the Purchaser must be in writing and signed by the Company. A failure or delay in exercise by the Company of a right conferred by these Conditions does not result in a waiver of that right.
No agent or employee of the Company has the authority to waive or vary these Terms and Conditions unless the company approves such waiver or variation in writing.
Neither these Conditions nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting.
GST if and when applicable is an extra charge for the Purchaser's account. If not applicable, a GST exemption certificate must be signed by the Purchaser and accompany the Purchaser's official order.
If by any reason of any legislation, regulation, government action or other cause beyond the Company's control any charge import duty or expenditure of any kind which is not at present chargeable or applicable, is imposed, becomes payable or applicable, or is incurred upon, to, or in respect of the goods hereby sold, such additional cost will be added to the purchase price and payable by the Purchaser.
The laws applicable in the State of Victoria, Australia govern these Conditions. The parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia and any courts competent to hear appeals from those courts.
Any provision of these Conditions which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remainder of these Conditions which will continue to operate in full force and effect in that or any other jurisdiction.