TERMS & CONDITIONS OF SALE
1st Nov 2004
Any order placed by a purchaser is deemed to be an order incorporating these terms and conditions notwithstanding any inconsistencies in the purchasers order or acceptance unless expressly agreed to by Helios Electroheat Pty Ltd / LN Elements Pty Ltd (the “Company”) in writing.
Orders accepted by the Company may not be cancelled or altered in whole or in part by the purchaser without the Company’s written consent and on terms, which indemnify the Company against all loss. Goods ordered in error or in excess cannot be returned to the Company for credit of exchange except with the written consent of the Company. The Company reserves the right to deduct a handling fee from any credit given in respect of returned goods.
The Company reserves the right to cancel any order at any time in the event that a receiver and manager is appointed over any of the purchaser’s assets or if a resolution is passed or an application is filed for the winding up of the purchaser or if the purchaser becomes unable to pay its debts generally as they fall due or the purchaser commits an act of bankruptcy within the meaning of Section 40 of the Bankruptcy Act.
3. Terms of Payment
The purchaser shall pay for goods supplied within 30 days from the invoiced date in which delivery was made. The Company reserves the right to vary the terms of payment and to require payment in full in cash prior to delivery should the Company consider that the creditworthiness of the purchaser has at any time become unsatisfactory.
The Company will treat any default by the purchaser in payment of any moneys due to the Company as a breach of these terms and conditions. The Company may, at its option, thereupon cease work on the relevant order and all others placed by the purchaser and hold all the purchaser” work until due payments are made. Recurring payment default will lead to the purchaser’s account with the Company being closed and any further order placed by the purchaser will only be accepted upon prepayment by bank cheque.
Any description of the goods is given by way of identification only and the use of such description shall not constitute the order as a sale by description.
5. Implied Terms
It is hereby acknowledged by the Company that, under State, Territory and Commonwealth law, certain conditions and warranties may be implied into this order between the Company and the purchaser and right and remedies may be conferred upon the purchaser in relation to goods or services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”). These terms and conditions are subject to those Non-excludable Rights.
6. Limitation and Exclusion of Liability
Subject to Clause 5, the Company disclaims all implied conditions and warranties and the rights and remedies conferred upon the purchaser by statute, the common law, equity, trade custom or usage or otherwise howsoever and all such conditions and warranties and all such rights and remedies are hereby expressly excluded.
Without limiting the generality of the forgoing the Company shall not be liable (whether before or after discharge of this order or otherwise) for any loss or damage to the purchaser arising from or caused or contributed to by the negligence of the Company or its servants or agents, nor shall the Company be liable for incidental, indirect or consequential loss or damage suffered by the purchaser as a result of a breach by the Company of its obligations hereunder or otherwise, including, but not limited to loss of profits or revenue or economic loss.
Where so permitted the liability of the Company for a breach of a Non-excludable Right is limited, at the Company’s option, to the replacement or repair of the goods or the supply of equivalent goods or paying the cost of replacing or repairing the goods or of acquiring equivalent goods.
The purchaser who shall pay for the quantity actually delivered than the quantity specified shall constitute fulfilment of the order and any excess not exceeding the amount aforesaid shall take delivery of up to 12% more to 5% minus.
A claim by the purchaser for short delivery of the goods MUST BE NOTIFIED TO THE COMPANY IN WRITING WITHIN SEVEN DAYS after delivery of the goods to the purchaser quoting the original invoice number and any claim which the purchaser does not notify within the time aforesaid (time being of the essence) shall be deemed to have been absolutely waived.
8. Delivery Time
Any time quoted for delivery is an estimate only and the Company shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to deliver or delay in delivery arising from any circumstances of whatsoever nature over which the Company does not have reasonable control including in particular but without limiting the generality of the foregoing, fire, flood, explosion, strike, lock-out or other industrial act or dispute, break-down, accident, unavailability or shortage of raw materials, labour, power supplies or transport facilities, or failure or inability to obtain licences, or act of God, or any order or direction of any local State or Federal Government or Government authority or instrumentality.
If the Company determines that it is or may be able to deliver within a reasonable time or at all the order may be cancelled by the Company upon the giving of notice to the purchaser. In the event of cancellation the purchaser shall have no claim against the Company for any damage loss cost or expense whatsoever. The purchaser shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery.
The delivery of orders containing no specific delivery date cannot be delayed beyond six months unless specifically arranged otherwise.
Unless the parties otherwise agree, delivery shall be deemed to occur when the purchaser is notified that the goods are available for collection at the Company’s works.
9. Quotations and Prices
Prices quoted are based on the Company’s estimated cost of production, manufacture or supply at the time of quotation and are subject to alteration without notice to the purchaser due to any increase in the Company’s costs between the date of quotation and the date or dates of delivery. Unless otherwise expressly agreed by the Company in writing all goods will be charged for at the prices ruling at the date or dates of delivery. All prices quoted are exclusive of sales tax and freight and delivery charges which if applicable will be for the purchaser’s account.
Any quotation is valid only with respect to the quantities, dimensions and quality standards detailed therein.
A quotation is not an offer by the Company to sell and may be withdrawn without notice. Any order given in respect of a quotation is not binding on the Company until accepted by the Company in writing. Telephone orders should be confirmed in writing.
10. Property and Risk
Property in and title to the goods supplied to the purchaser by the Company shall remain with the Company and shall only pass to the purchaser upon payment in full of all monies owing by the purchaser to the Company. Prior to such payment in full the purchaser shall hold the goods as bailee for the Company.
If the goods (or any part of them) are converted into or incorporated in a new product or products (the “new goods”) before the purchaser has paid for them in full, the conversion or incorporation shall be deemed to have been effected on behalf of the Company and the new goods shall be the property of the Company.
In the event of the goods or the new goods being sold or disposed of by the purchaser prior to payment in full of all monies owing by the purchaser to the Company then that part of the proceeds thereof which represents the price of the goods or, in the case of new goods, the price of the goods converted into or incorporated in those new goods received by the purchaser (even if received before the expiry of the period of credit allowed by the Company in relation to the goods has expired) shall be the property of the Company and shall be set aside in a separate account and held by the purchaser for the Company pending payment in full of all monies owing by the purchaser to the Company.
If any payment by the purchaser to the Company is overdue in whole or in part the Company may (without prejudice to any of its other rights) require the purchaser to immediately remit to the Company those amounts held pursuant to the preceding paragraph sufficient to meet all amounts owing by the purchaser to the Company or to take possession of and sell the goods and may enter upon the purchaser’s premises by its servants or agents for that purpose.
The right of the purchaser to convert or incorporate the goods into new goods and to sell or dispose of the goods or new goods shall automatically cease upon the happening of any event entitling the Company to cancel the order under Clause 2 or if the Company at any time revokes such rights by notice to the purchaser.
11. Performance and Representations
The purchaser acknowledges that neither the Company nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the goods for any particular purpose or any other matter.
12. Quality Control
Unless expressly agreed otherwise, the Company shall have the right to set tolerance standards.
Any inspection or test agreed upon prior to acceptance of the goods by the purchaser must, unless otherwise agreed, be carried out at the Company’s works. In the event of any specialised inspection being required or special tests prescribed by the purchaser, the cost shall be to the purchaser’s account. Subject to Clause 5, in the event of any such inspection the Company accepts no responsibility for any defects in the goods or services, which are identified thereafter.
14. Instructions by the Purchaser
The purchaser shall indemnify the Company from and hold it harmless against all losses, expenses or liability whatsoever incurred by the Company as a result of compliance by the Company with any instruction of the purchaser in relation to goods to be supplied to it by the Company.
The Company reserves the right to deliver by instalments and each instalment shall be deemed to be sold under a separate contract. Failure by the Company to deliver any instalment shall not entitle the purchaser to cancel the balance of the order.
In the event of the purchaser failing to take delivery of any instalment, the Company may elect to cancel the balance of the order.
Failure by the Company to insist upon strict performance of any term, warranty or condition of any order shall not constitute a waiver thereof or of any rights the Company may have in relation to any subsequent breach of any term warranty or condition of that or any other order.
The purchaser warrants that any design or instruction furnished to the Company shall not be such as will cause the Company to infringe any patents, registered designs, trade marks, copyrights or other intellectual property rights in the execution of the purchaser’s order and the purchaser agrees to indemnify the Company against any infringement or unauthorised use thereof and it is agreed that the sale and purchase of the goods does not confer on the purchaser any licence or rights under any patents, trade marks, registered designs, copyrights or other intellectual property rights which are the property of the Company and the Company shall be under no obligation to disclose the methods or techniques used in production.
The cost of tooling replacements and/or repairs caused by fair wear and tear will be charged to the purchaser.
The Company reserves the right to subcontract the production manufacture or supply of the whole or any part of the goods to be supplied.
Any notice to be given by a party to this order to the other party shall be sent by registered post or facsimile to the other party’s last known address or principal place of business. No notice shall be deemed to have been given until it is actually received at such address.
If any provision of this order is or becomes for any reason wholly or partly void, invalid or unenforceable, such provision shall to the extent of the voidness, invalidity or enforceability be severed from this order.
22. Governing Law and Jurisdiction
This order shall be governed by and construed in accordance with the laws of the State of Victoria and the purchaser hereby submits to the non-exclusive jurisdiction of the Courts of that State.
23. Fit for Purpose
The Company does not warrant goods or services supplied are fit for purpose, this includes the design and integrated materials incorporated in goods supplied. The purchaser is responsible for determining the selection of goods to application suitability.
The Company guarantee electric heating elements manufactured by it, to be free from defects in workmanship and/or materials. It’s obligations pursuant to this guarantee are limited to the repair or replacement of any such element which proves to be defective within the guarantee period, or at the Company’s option, refund of the purchase price. The repair, replacement or refund shall be effected upon the defective element being returned freight prepaid to the Registered Office of Helios Electroheat Pty Ltd / LN Elements Pty Ltd or to the offices of its accredited Agents. The Company shall not be responsible for the cost of removing any defective element or reinstalling the repaired or replacement element.
Where the Company supplies goods not of Helios Electroheat Pty Ltd / LN Elements Pty Ltd manufacture, the customer shall only be entitled to such benefits as the Company may receive under any guarantee given to it in respect thereof.
Guarantee Period - Twelve months from the date of sale by the Company or twenty-four (24) months from the date of manufacture by Helios Electroheat Pty Ltd / LN Elements Pty Ltd, whichever period shall first expire.
Conditions - This guarantee shall not apply -
(a) if notice of the defect has not been given to the Company within the guarantee period;
(b) to consequential damage arising out of alleged failure of elements supplied;
(c) if the heating element has been -
(I) subject to misuse, abuse, negligence or accident;
(ii) subjected to conditions giving rise to sheath corrosion;
(iii) installed, maintained or operated otherwise than in the manner for which it was designed;
(iv) operated on an electrical supply, the voltage of which varies by more than 10% from the rated voltage applicable to the element;
(v) used for any duty or subjected to any abnormal operating condition;
(vi) improperly specified, misapplication or operating beyond Helios / Ln’s recommended limits
(vii) modified from original supply;