- PURCHASER’S STATUTORY RIGHTS
These conditions do not affect the rights entitlements and remedies conferred on a purchaser who is a Consumer under the Trade Practices Act.
Except to the extent that such interpretation is excluded by or repugnant to the context whenever the following words in these conditions: “bankrupt” means and includes the situation where execution has been leveled upon the whole or any part of the assets of the purchaser and, in respect of a purchaser who is an individual, the situation where the purchaser has committed an act of bankruptcy or subject to any deed of assignment, arrangement or composition with its creditors in accordance with the bankruptcy law and in respect of a purchaser who is a corporation, the situation where the purchaser is wound up or is the subject of the presentation of a petition or the making or an order or the passing of a resolution for its winding up, or is placed under official management or causes a meeting of its creditors to be summoned for the purpose of placing it under official management, of has a receiver manager appointed in respect of all or any part or its assets, or has an inspector appointed in respect of all or any part of its affairs or is subject to an application for such appointment or has a comprise or arrangement proposed between itself and its creditors or any class of them.
“Conditions” means these Conditions of Sale and any further or other conditions of sale amending or adding to these Conditions.
“Consumer” has the meaning given to it in the Trade Practices Act.
“Consumer Goods” means goods of a kind ordinarily acquired for personal, domestic or household use or consumption.
“date of delivery” means the date of delivery (if any) shown on the front of this document or any extension of that date pursuant to Condition 8 or 16 (c).
“front of this document” means the totality of any quotation, application for credit, acknowledgement, invoice, delivery docket or other document which incorporated these Conditions.
“goods” means the goods described on the front of this document or where there is no such description those things provided by JAVAC to the purchaser including but without limiting the generality or the foregoing all raw materials and manufactured items.
“JAVAC” means JAVAC Pty Ltd.
“Purchaser” means the purchaser referred to on the front of this document.
“Trade Practices Act” means and includes the Trade Practices Act 1974 and relevant State and Territory Fair Trading or other consumer protection legislation and includes any statute amending, consolidating or replacing the same from time to time.
- ENTIRE CONTRACT
Unless there are other or different terms and conditions set out in another document signed by a duly authorized representative of JAVAC this document including these Conditions constitutes the entire contract between JAVAC and the purchaser and without limiting this;
(a) Any terms and conditions set out in any order or other documents submitted by or on behalf of the purchaser shall be inapplicable unless any particular part of these terms and conditions or other modification or addition to these Conditions is expressly agreed to in writing by JAVAC.
(b) The provisions of the United Nations Convention for the International Sale of Goods adopted at Vienna, Austria on the 10th April 1980 shall, unless otherwise agreed by JAVAC in writing be in applicable and
(c) Except as provided in these Conditions and except for those conditions and warranties implied by the Trade Practices Act which may not be modified or excluded the purchaser agrees that it has not relied on any inducement, representation or statement made by or on behalf of JAVAC in purchasing the goods and that there are no implied conditions or warranties herein and no collateral contracts in existence.
Subject to Condition 1 any advice, recommendation, information, assistance or service provided by JAVAC in relation to the application or use of the goods is given in good faith and is believed by JAVAC to be appropriate, but is given without any liability or responsibility on JAVAC’s part.
Goods of JAVAC manufacture are based on current price of materials and cost of production. All prices other than those quoted firm shall be at time of delivery. Goods from other manufacturers or sources unless sold ex-stock are quoted in good faith, however variations in duties, freight costs, exchange rates, or suppliers increases shall be purchaser’s responsibility. Quotations offered as firm are valid for thirty days from date of offer unless otherwise stated and all goods offered ex-stock are subject to prior sale. Unless otherwise stated the purchaser shall be responsible for charges relating to packing, insurance, delivery costs, and all taxes (including Goods and Services Tax) and duties.
- TERMS OF PAYMENT
The terms of payment are net cash.
The terms of payment for account customers are net cash thirty (30) days (that is thirty days from the end of the months in which delivery is made) unless otherwise stated / provided on the front of this document or agreed in writing by JAVAC.
(a) Unless otherwise stated on the front of this document or agreed in writing by JAVAC the goods are supplied subject to any specification as to weight, quantity, size, dimensions, finishes, chemical composition and physical properties as may be published generally by JAVAC or as may be set out in any specification issued by JAVAC in relation to the goods, or if no such specification has been published or set out, subject to such specification as is normally regarded as being commercially acceptable.
(b) Where any specification for the goods are to be supplied by the purchaser they shall be supplied in reasonable time to enable JAVAC to complete delivery by the date for delivery.
The date for delivery is the estimated date for delivery only and JAVAC will be under no liability for any loss or damage if the goods are not delivered by that date. Where JAVAC is unable to deliver the goods because of accidents to machinery, industrial disputation, strikes, lockouts, breakdowns, labour shortages, fires, floods, delays in transportation, lack of transportation facilities, restrictions imposed by any laws or any cause beyond the control of JAVAC then the date for delivery will be extended by the duration of the delay.
- DELIVERY BY INSTALLMENTS
JAVAC reserves the right to deliver the goods in whole or by installments, as well as to deliver prior to the date for delivery and in such event the purchaser shall not refuse to take delivery of the goods. Where the goods are delivered by installments each installment shall be deemed to be sold under a separate contract. Any failure on the part of JAVAC to deliver an installment within a specified time will not entitle the purchaser to repudiate the contract with regard to the balance remaining undelivered.
The risk in the goods shall pass to the purchaser upon delivery to the purchaser or its agents or to a destination nominated by the purchaser or to a carrier commissioned by the purchaser.
(a) Property in the goods shall remain with JAVAC and JAVAC reserves the right to dispose of the goods until such time as:
(1) full payment is made for all amounts owing by the purchaser to JAVAC under these Conditions; or
(2) the purchaser sells the goods (whether in their original form, or altered, as part of the other products) to its purchaser in the ordinary course of business.
(b) If the purchaser fails to pay all or any part of the purchaser’s total indebtedness to JAVAC under these Conditions, or an event of default as specified in Condition 12 occurs JAVAC may without notice and without prejudice to any of its other rights and remedies recover and/or resell the goods or any of them and may enter upon the purchaser’s premises by its servants or agents for that purpose.
(c) Until payment in full for all amounts by the purchaser to JAVAC under these Conditions:
(1) the purchaser shall store the goods in a way that clearly indicated JAVAC’s title
(2) the purchaser shall hold the goods as bailee and as a fiduciary for JAVAC and
(3) in the event of sale of the goods (whether in their original form, or altered, or as part of other products ) the purchaser in its position as a fiduciary shall
(a) assign to JAVAC the benefit of any claim against a purchaser and
(b) account fully to JAVAC for the proceeds of sale.
Should default be made by the purchaser in paying any sum due under this or any other contract between JAVAC and the purchaser as and when it becomes due or should the purchaser be or become bankrupt and without prejudice to any other right or remedy of JAVAC under these Conditions:
(a) JAVAC may (without having to give notice thereof to the purchaser) suspend all further deliveries until the default has been made good or cancel this or any further contract with regard to future deliveries.
(b) JAVAC may refuse, change or withdraw extension of credit at any time, and may demand the immediate cash payment of all monies owing under this or any such other contract; and
(c) The purchaser shall on demands by JAVAC pay to JAVAC a default interest charge at the rate equivalent to the prime rate for an overdraft of $100,000 and over for the time being applied by the National Australia Bank, plus 2% calculated on a daily basis on any monies due but unpaid, such interest to be computed from the due date of the payment.
(d) The purchaser is also obligated and agrees to pay all fees and costs incurred in relation to debt recovery and shall pay this in addition to the amount owed.
(a) JAVAC warrants that:
(1) upon payment in full it shall give good title to the goods
(2) the goods delivered pursuant to the contract shall conform to the description shown on the front of this document or any other specification provided for in these conditions and
(3) subject to paragraph (b) of this Condition, the goods shall be free from defects in material and workmanship except such defects as are normally regarded as being commercially acceptable.
(b) Sale to non-consumers
(1) Where the purchaser is not a consumer and the purchaser alleges and JAVAC agrees that any of the goods do not correspond with the description of them on the front of this document, or are defective as the case may be, then provided that those goods are preserved intact and available for inspection by a representative of JAVAC and are returned to JAVAC in the same order and condition as that in which they were delivered JAVAC shall as its option replace those goods or reimburse the purchaser for the amount of the purchase price paid for them or repair the goods or reimburse the purchaser for the cost of having the goods repaired but any claim must be made within seven days from the date of delivery of those goods. In no circumstances will JAVAC incur any liability in respect of or arising out of or in connection with any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the purchaser; and
(2) If the purchaser duly calls upon JAVAC to indemnify it pursuant to a right accruing to the purchaser under the Trade Practices Act in respect of any liability of the purchaser to a consumer as a result of a breach on condition or warranty complied by the Trade Practices Act in a contract for the supply of goods by the purchaser to that consumer, sub-paragraph (1) will not apply and in respect of goods that are consumer goods JAVAC’s liability is limited to indemnifying the purchaser in accordance with the Trade Practices Act while in respect of goods that are not consumer goods JAVAC’s liability is subject to the Trade Practices Act liability to pay to the purchaser an amount equal to the cost of replacing the goods or the cost of obtaining equivalent goods or the cost of having the goods repaired, whichever is the lowest amount.
(c) Sale to consumers
In the case of goods supplied by JAVAC to a purchaser who is a consumer, to the extent that the goods are not consumer goods, the liability of JAVAC to that purchaser for breach of any warrant or condition (other than a warranty or condition implied by Section 69 or other equivalent section of the Trade Practices Act) or for breach of any duty of care shall in all cases be limited, at the option of JAVAC to any one or more of the replacement of the goods or the supply of equivalent goods or the payment of the cost of having the goods repaired, and (without limiting this) shall not include any liability in respect of or arising out of or in connection with any special consequential direct or indirect loss, damage, harm or injury suffered or incurred as a result of such breach.
- LIMIT OF WARRANTY
To the extent permitted by law and other than for vacuum tubes, lamps, test leads, batteries, glass components, items of electrical control including electric motors have warranties for ninety days from the date of delivery unless otherwise stated or in accordance with other suppliers conditions to JAVAC. All other items shall have a warranty of twelve months from date of delivery unless otherwise stated. Product failure due to corrosion, foreign matter entering the pump, condensation/water interference, unauthorised modification, abuse and normal wear and tear is not covered under the terms of this warranty.
Purchaser is obliged to protect the pump and/or equipment from the application. The warranty is applicable subject to no alteration to serial numbers, identification plates nor any interference or modification with working mechanisms. Goods used for rental shall have a total warranty of three months and it is the buyer’s responsibility to advise JAVAC that the goods will be used for rental. All items imported or purchased for resale by JAVAC are subject to the warranty of such manufacturer or supplier and limited to such warranties. Terms or warranty are subject to proper usage and compliance with operating procedures. Warranty claims must be made within the warranty period.
- TRANSPORT AND INSURANCE
(a) Unless otherwise specified in these Conditions and where JAVAC has agreed to transport the goods, the method of transport will be as chosen by JAVAC unless these Conditions specify a method of transport
(b) The cost of transporting the goods shall unless otherwise indicated in these Conditions, be paid by the purchaser.
(c) Quotes for transport are not firm and JAVAC reserve the right to amend charges according to costs.
(d) Goods dispatched by JAVAC will not be insured by JAVAC unless the purchaser instructs JAVAC to do so, in which event the cost of such insurance shall be paid by the purchaser.
(e) Where insured, claims for losses shall be limited to the repair or replacement value of the goods. (Applies to new goods only)
(f) Where dispatched after service or repair, insurance claims are limited to the repair charges only.
(g) JAVAC reserve the right to repair or replace goods in the event of any claim.
(h) Claims in relation to transport damage must be made within 48 hours of receipt at the Purchasers premises or designated address.
- ORDER VARIATIONS
Alterations to any orders may only be made with the consent of JAVAC. Without limiting or restricting the generality of this Condition:
(a) Alteration to the size, dimensions or physical properties of the goods will not be accepted in regard to order which are either completed or in production.
(b) Where the purchaser cancels all or part of an order prior to commencement of production of the goods it shall pay JAVAC as liquidated damages an amount equal to 25% of the price of the cancelled goods; where the purchaser cancels all or part of the order after the commencement of production of the goods it shall pay JAVAC as liquidated damages the full price of the goods cancelled less the current scrap value thereof as determined by JAVAC.
(c) Where the purchaser requests a deferment of delivery of the goods and such deferment is agreed to by JAVAC the date to which delivery is deferred shall become the date for delivery. From the originally nominated delivery date until the actual date of delivery the purchaser shall pay a warehousing fee as nominated by JAVAC.
(d) Where the size or quantity of the order is changed the price to be paid by the purchaser for the goods will be recalculated either in accordance with JAVAC scale or prices applicable to the revised quantity or at the rate at which the price of the order being charged was originally calculated whichever is the greater.
Any samples exhibited to or inspected by the purchaser are solely for the purchase’s convenience and do not constitute a sale by sample. All samples produced for the examination of the purchaser remain the property of JAVAC. Samples shall be returned to JAVAC on request.
The failure by JAVAC to enforce any of the Conditions or to take action in respect of any beach shall not be a waiver of any of these Conditions even if such failure or breach is continuing or is repeated from time to time and no estoppel may be pleaded against JAVAC either at law or in equity in any circumstances whatsoever.
- GOVERNING LAW
These Conditions shall be governed by and construed in accordance with the law of VICTORIA AUSTRALIA.
The Purchaser and or representative acknowledges these Terms and Conditions and agrees to abide by them, acceptance is considered automatic when a commercial purchase order is raised.