Safety Equipment Australia -- Oct 2006
CONDITIONS OF
1 Interpretation
1.1 In these
conditions the following words will have the following meaning:
Supplier means either SEA, SES and related bodies
corporate either of them that supplies Products, as named overleaf.
Purchaser means the person or other legal entity
nominated as purchasing Products and named overleaf.
Manufacturer means the corporation manufacturing a
Product, as identified in the documentation accompanying that Product.
Products means products listed overleaf which are the subject of these conditions of sale.
Loss means any and all losses (including but
not only indirect or consequential loss and loss of profits, business and
business opportunities) damages, claims, liabilities and demands and all
expenses, legal and otherwise (including but not limited to all legal fees and
disbursements incurred) of whatsoever kind and nature.
2 Terms of Payment
2.1 Purchaser
must pay the price of Products in the manner nominated overleaf. Unless otherwise stated, terms of payment are
30 days from date of invoice.
2.2 Prices
stated overleaf exclusive of goods and services and value added taxes, customs
duty (if supplied to a country other than the same country as Supplier’s
address shown overleaf), sales tax, freight charges and other delivery
costs. These must all be paid by
Purchaser in addition to the price shown overleaf. However, these items will be included in the
price if these items are expressly stated overleaf as included in the price.
2.2 If
payment is not made within the period allowed for payment Supplier will have a
right to charge interest at a rate equivalent to two (2) per centum in excess
of such rates as may be charged from time to time by Supplier's bankers for
overdraft accommodation, calculated from the date on which payment was due to
the date of full and final payment.
3 Title and Risk
3.1 Title in
Products will remain vested in Supplier and will not pass to Purchaser until
payment for Products has been made in full.
If default is made by Purchaser in payment, Supplier will have the right
at Supplier’s absolute discretion and without further notice to enter from time
to time upon Purchaser's premises and remove any or all of the Products. Supplier reserves the full right to dispose
of Products in such circumstances.
3.2 Products
will be at Purchaser's risk immediately upon dispatch from Supplier's warehouse
or delivery to Purchaser or into the custody of anyone acting on Purchaser's
behalf, whichever is the sooner.
3.3 If
nominated overleaf, Supplier will arrange for delivery of Products to Purchaser
at Purchaser's risk and expense. In this
event, Supplier may, if so requested by Purchaser and then at Purchaser's
expense, arrange insurance cover for Products.
3.4 Supplier
will make reasonable efforts to have the Product delivered on the date agreed
to between the parties but Supplier shall be under no liability whatsoever
should delivery not take place on this date for whatever reason.
4 Acceptance and Return
4.1 Purchaser
may inspect Products forthwith upon delivery and must give notice in accordance
with Clause 5 if Purchaser alleges Products are not in accordance with these
conditions. If Purchaser fails to give
such notice, Products will be deemed to have been accepted by Purchaser. Claims for non-delivery must be made within
fourteen (14) days after date of delivery.
4.2 Claims to
return Products and obtain credit are subject to approval by an authorised
representative of Supplier. Supplier
will allow Purchaser a credit for the cost of Products accepted for return subject
to a deduction of a handling charge of 20% of the invoiced value of the
returned Products and any freight charges paid by Supplier for the original
shipment of those Products. Supplier
will not be obliged to accept for return Products which have been used. Products must be returned in their original
packing.
5 Limited Warranty
5.1 Supplier
warrants (this Limited Warranty)
that:
(a) Products
manufactured by Supplier will be free from defects in material and workmanship
for a period of one (1) year from the date of supply;
(b) Products
manufactured by a Manufacturer other than Supplier will be free of defects in
material and workmanship for a period stated in Manufacturer’s printed warranty
accompanying those Products.
5.2 If any
Product or part thereof does not comply with this Limited Warranty Supplier and/or the Manufacturer will
at their election replace that Product, or pay the cost of replacing that
Product or acquiring an equivalent Product, or repair that Product.
5.3 Any claim
under this Limited Warranty
must be made within the relevant warranty period stated in
paragraph 5.1 above and must be notified in writing to Supplier within thirty
(30) days after discovery of the defect giving raise to the claim. No claims will be met until Manufacturer,
Supplier or their duly authorised representative has inspected Products subject
to the claim. These Products must be
returned freight pre-paid to such place as Manufacturer, Supplier or their
representative may reasonably specify for inspection. Purchaser must ship Products back in their
original packaging, and insure the shipment or accept the risk of loss or
damage during shipment.
5.4 This
Limited Warranty will not apply to any Product or part thereof which has been
repaired, altered or modified in any way whatsoever by any person other than
the Manufacturer or Supplier or their authorised service representatives;
installation, use or maintenance of Products other than in accordance with
instructions; failure to perform preventative maintenance; accident, abuse or
misuse.
5.5 Supplier
and Manufacturer make no express warranties beyond those stated here. Supplier and Manufacturer disclaim all other
warranties, express or implied, including without limitation implied warranties
or merchantability and fitness for a particular purpose. Some jurisdictions do not allow limitations
on implied warranties, so this limitation may not apply to Purchaser. The above Limited Warranty gives Purchaser
specific legal rights and Purchaser may also have other rights which vary from
one jurisdiction to another.
6 Liability and Indemnity
6.1 Some
jurisdictions pursuant to product liability law or otherwise do not allow the
exclusion or limitation of incidental or consequential damages or other
limitations of liability. The following
paragraphs 6.1, 6.2 and 6.3 only apply where and to the extent permitted by
law.
6.2 The
liability of Supplier shall, at the election of Supplier be limited to:
(a) replacement of Products or supply of the equivalent;
(b) payment of the cost of having Products repaired;
(c) repair of Products; or
(d) refund of the cost of Products.
6.2 Neither
Supplier nor Manufacturer will have any liability to any person for any Loss
suffered or incurred by any person in relation to Products, and Supplier and
Manufacturer exclude all and any other liability for loss suffered by Purchaser
and any such person claiming Loss arising out of supply of Products to Supplier
including (but without limiting the generality thereof) any Loss caused by or
resulting directly or indirectly from any failure, breakdown, defect or
deficiency of whatsoever nature or kind in any Products or any loss or damage
caused by the negligence of the Manufacturer, Supplier, their respective
officer, agents, employees, officers and sub-contractors.
6.3 Purchaser
must indemnify and keep Supplier indemnified against all Loss suffered or
incurred by Supplier or any person claiming Loss arising out of supply of
Products to Supplier or any subsequent use of Products arising out of or in any
manner connected with the use of Products caused by the negligent or willful
act or omission of Purchaser or its employees, agents or contractors or failure
to use Products in accordance with Supplier's or Manufacturer's instructions or
common or accepted industry practice.
6.4 Purchaser
must at Purchaser’s own expense defend any and all actions referred to in
paragraph 6.3 above and must pay all legal costs and other costs and expenses
arising therefrom.
7 Purchaser’s Safety Obligations
7.1 Purchaser
acknowledges that:
(a) Supplier
does not give advice or assistance in relation to specification of Products for
particular industrial or other working conditions; and
(b) Products
will not operate to specification unless regularly cleaned and maintained,
replaceable parts (such as filters) are replaced in accordance with
specification, and persons using Products read all accompanying instructions
and are trained as to proper fitting, use and care of Products.
7.2 Purchaser
is responsible for selection of appropriate Products for particular industrial
or other working conditions and appropriate training of persons in fitting and
use of Products. Purchaser agrees that
prior to use of any Product by any person that Purchaser will:
(a) do all
that is necessary to ensure that the person is properly trained as to fitting
and use of that Products and that the Product is used only in accordance with
Supplier's specifications;
(b) inspect Products and make its own assessment of their
suitability having regard to Purchaser’s intended use for these Products; and
(c) comply with any recommendation made by the New South Wales
Department of Industrial Relations (or any authority in any other State or
Territory governing similar matters in relation to Products).
7.2 Purchaser
must, upon Supplier’s request, provide to Supplier documentation detailing the
steps taken by Purchaser in compliance with paragraph 7.2(a), (b) and (c).
7.3 Purchaser
will indemnify and keep indemnified Supplier against any claim arising out of
Purchaser's failure to comply with paragraph 7.2.
8 GENERAL
8.1 These
conditions are the entire understanding of the parties to the exclusion of any
and all prior agreements or understandings either oral or written, provided
that if Products are supplied pursuant to a written distribution or reseller
agreement between Supplier and Purchaser the terms of that agreement will
prevail over these conditions to the extent of any inconsistency. No subsequent variation of these conditions
shall have effect unless expressly agreed to in writing by both parties.
8.2 These
conditions shall be governed by the laws applicable in the State of
8.3 If any of
these conditions, not being of a fundamental nature, is held to be illegal or
unenforceable, the validity and enforceability of the remainder of these
conditions shall not be affected.
8.4 No
waiver, consent or indulgence made or given by Supplier in relation to any
breach or failure in Purchaser's performance shall be construed as a variation
of these conditions or as a waiver of Supplier's rights in the event that such
breach or failure continues or recurs.