1.1 In these Terms:
(a) “ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act;
(b) “Agreement” means any agreement for the provision of goods or services by the Company to the Buyer;
(c) “Buyer” means the person, jointly and severally if more than one, acquiring goods or services from the Company;
(d) “Company” means Electro Chemical Engineering Pty Ltd trading as ECEFast or Instrument Warehouse or Engineering & Thermal Supplies;
(e) “consumer” is as defined in the ACL and in determining if the Buyer is a consumer, the determination is made if Buyer is a consumer under the Agreement;
(f) “goods” means goods supplied by the Company to the Buyer;
(g) “GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
(h) “services” means services supplied by the Company to the Buyer; and
(i) “Terms” means these Conditions of Sale.
2.1 All goods and services are supplied by the Company subject to these Terms, which supersede any earlier sets of terms and conditions appearing in catalogues or elsewhere and which shall override any terms or conditions stipulated, incorporated or referred to by the Buyer, whether in the order or in any negotiations.
2.2 The relaxation or failure to enforce any of the Terms by the Company on any occasion shall not be construed as a waiver of any of the Company’s rights.
2.3 The Company may vary or amend these Terms by written notice to the Buyer at any time. Any variation of these Terms must be confirmed in writing by the Company and will not otherwise be valid.
2.4 No order shall be deemed to have been accepted by the Company unless it is accepted by the Company in writing.
2.5 The Company has absolute discretion to refuse to accept any order from the Buyer.
3.1 All prices are subject to change without notice. All orders are accepted by the Company on the condition that they will be invoiced at prices at the time of order subject to any agreed escalation. All prices will be inclusive of GST and any other taxes or duties imposed on or in relation to the goods and services except where otherwise stated.
3.2 Unless otherwise stated, prices are ex works. Where the Buyer requires freight to be prepaid, then all such expenses will be charged to the Buyer’s account at cost.
3.3 All prices shown in published catalogues or price lists are recommended selling prices only and there is no obligation on the part of any reseller to maintain the same prices.
3.4 Any quotation includes only such goods and services as are specified therein.
3.5 Goods offered ex stock are subject to prior sale.
3.6 Any quotation, if not previously withdrawn, will be valid for any order made pursuant to it within 30 days of its date and will be an invitation to treat only. (Validity of Proposal)
3.7 No discounts shall apply unless these are confirmed in writing.
3.8 If the Buyer requests any variation to the Terms, the Company may increase the price to account for the variation.
3.9 Where there is any change in the costs incurred by the Company in relation to goods or services, the Buyer may vary its price to take account of any such change, by notifying the Buyer.
4.1 All prices quoted will include GST unless stated. A tax invoice will be supplied in the approved format.
5.1 Terms of payment are strictly nett cash with order unless a credit account has been established with and approved by the Company.
5.2 Where a credit account has been established with the Company, payment must be made within 30 days of date of the Company’s tax invoice.
5.3 The Company reserves the right at its complete discretion to refuse to establish a credit account for any Buyer, to refuse credit to any Buyer notwithstanding that a credit account may already have been established and to withdraw established credit account facilities.
5.4 Payment terms may be revoked or amended at the Company’s sole discretion immediately upon giving the Buyer written notice.
5.5 The time for payment is of the essence.
5.6 lf the Buyer defaults in any payment on the due date (time being of the essence) or is otherwise in breach of any of these Terms, or (being a company) enters into liquidation (whether compulsory or voluntary) or has a receiver or manager appointed of the whole or any part of its business or undertaking, or if distress or execution is levied or threatened upon any of the Buyer’s property, then in any such case and without prejudice to any other rights, the Company may have, the Company:
(a) may charge the Buyer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
(b) may charge the Buyer for, and the Buyer must indemnify the Company from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover any goods;
(c) shall be entitled to suspend all further deliveries to the Buyer until the default is made good or to refuse to deliver any further goods to the Buyer; or
(d) by written notice to the Buyer, terminate any uncompleted contract with the Buyer.
6. PASSING OF PROPERTY
6.1 Until the Company receives full payment in cleared funds for all goods and services supplied by it to the Buyer, as well as all other amounts owing to the Company by the Buyer:
(a) title and property in all goods remain vested in the Company and do not pass to the Buyer;
(b) the Buyer must hold the goods as fiduciary bailee and agent for the Company;
(c) the Buyer must keep the goods separate from its goods and maintain the Company’s labelling and packaging;
(d) the Buyer must hold the proceeds of sale of the goods on trust for the Company in a separate account however failure to do so will not affect the Buyer’s obligation to deal with the proceeds as trustee;
(e) the Company may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of the Company, and for this purpose the Buyer irrevocably licences the Company to enter such premises and also indemnifies the Company from and against all costs, claims, demands or actions by any party arising from such action.
7. PERSONAL PROPERTY SECURITIES ACT
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
7.2 For the purposes of the PPSA:
(a) terms used in this clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and the Company has a Purchase Money Security Interest in all present and future goods supplied by the Company to the Buyer and the proceeds of the goods;
(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Buyer at any particular time; and
(d) the Buyer must do whatever is necessary in order to give a valid security interest over the goods and their proceeds which is able to be registered by the Company on the Personal Property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from the Company’s premises and not at any later time.
7.4 Where permitted by the PPSA, the Buyer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 The Company and the Buyer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
7.6 To the extent permitted by the PPSA, the Buyer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Buyer or which place obligations on the Company will apply only to the extent that they are mandatory or the Company agrees to their application in writing; and
(b) where the Company has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.7 The Buyer must immediately upon the Company’s request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by the Company to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Company may at any time require.
7.8 The Company may allocate amounts received from the Buyer in any manner the Company determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the Company.
8. RISK AND INSURANCE
8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Buyer immediately on the goods being delivered to the Buyer or taken from the Company’s premises.
8.2 The goods are sold to the Buyer on the basis that the Buyer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
8.3 The Buyer assumes all risk and liability for loss, damage or injury to persons or to property of the Buyer, or third parties arising out of the use, installation or possession of any of the goods sold by the Company, unless recoverable from the Company on the failure of any statutory guarantee under the ACL.
9.1 Any time or date quoted by the Company for delivery is an estimate only. Whilst every endeavour will be made to meet an estimated time for delivery the Company shall not be liable to make good any damage or loss whether arising directly or indirectly out of delay in delivery.
9.2 If the Company cannot complete the services by any estimated date, it will complete the services within a reasonable time.
9.3 The Buyer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Buyer to the point of delivery.
9.4 The Company may make part delivery of goods or provision of services and the Company may invoice the Buyer for the goods or services provided.
9.5 The Buyer indemnifies the Company against any loss or damage suffered by the Buyer, its sub-contractors or employees as a result of delivery, except where the Buyer is a consumer and the Company has not used due care and skill.
9.6 If delivery is attempted and is unable to be completed, the Buyer is deemed to have taken delivery of the goods. The Buyer is liable for storage charges payable monthly on demand.
9.7 If agreed that the Buyer will collect the goods:
(a) the Buyer must collect the goods with 7 days of being advised they are ready;
(b) if the Buyer does not collect the goods within 7 days, the Buyer is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
9.8 Non-delivery within 7 days of the date of dispatch must be reported immediately in writing to the Company.
10.1 When the Buyer examines the goods before delivery is effected, the Buyer shall have no further right to inspect on arrival, other than to notify the Company of any loss or damage in transit.
10.2 When the goods are delivered to the Buyer without any previous examination, the Buyer shall inspect the goods immediately on arrival and shall within 7 days of such inspection give written notice to the Company, of any matter or thing, by reason of which he may allege that the goods are not in accordance with the Terms and the order. lf the Buyer shall fail to give such notice, the goods shall be deemed to be in all respects in accordance with the Terms and the order and the Buyer shall be bound to accept and pay for them accordingly. Goods shall not be returned without authority from the Company.
11.1 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 for 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.
11.2 Subject to the exclusions and limitations set out below, all goods which are the Company’s own or the Company’s principals manufacture are guaranteed against faulty workmanship, materials or design for a period of twelve (12) months from the date of dispatch.
11.3 If a defect covered by this warranty appears in the goods before the end of the warranty period and the Company finds the goods to be defective in materials or workmanship, the company will either replace or repair the goods or the defective part of the goods free of charge.
11.4 The Company reserves the right to replace defective parts of the goods with parts and components of similar quality, grade and composition where an identical part or component is not available.
11.5 Goods presented for repair may be replaced by refurbished goods of the same time rather than being repaired. Refurbished parts may be used to repair the goods.
11.6 If a fault covered by warranty occurs, the Buyer must first contact the Company at the address listed in these Terms.
11.7 Any warranty claim must be accompanied by proof of purchase, and full details of the alleged defect.
11.8 Prior to accepting any warranty claim, the Company is permitted to inspect the defect.
11.9 The Buyer must bear the cost of the defective parts being returned into the Company’s store.
11.10 Any repairs will be covered by a 60 day warranty covering only the parts replaced. Failure of other parts which affect functionality will not be covered.
11.11 Any unauthorised repairs or alterations to the equipment shall invalidate that warranty. In the case of goods not of the manufacture of the Company or its principals, the Company undertakes that it will, if requested in writing by the Buyer, make all reasonable endeavour in assisting the Buyer in obtaining from the manufacturer the benefit of any guarantee or warranty which the manufacturer may have expressly given as to the quality or fitness for any purpose of the goods, except as may otherwise be provided for by law.
11.12 The benefits of this warranty are in addition to any rights and remedies imposed by Australian State and Federal legislation that cannot be excluded. Nothing in this warranty is to be interpreted as excluding, restricting or modifying any State or Federal legislation applicable to the supply of goods and services which cannot be excluded, restricted or modified.
12.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
12.2 If the Buyer is a consumer, nothing in these Terms restricts, limits or modifies the Buyer’s rights or remedies against the Company for failure of a statutory guarantee under the ACL.
12.3 If the Buyer on-supplies the goods to a consumer:
(a) if the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of the Company’s liability to the Buyer;
(b) otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of the Company’s liability to the Buyer;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Buyer or any third party.
12.4 If clauses 11.2 or 11.3 do not apply, then other than as stated in the Terms or any written warranty statement, the Company is not liable to the Buyer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Buyer or any third party.
12.5 The Company is not liable for any indirect or consequential losses or expenses suffered by the Buyer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
12.6 The Buyer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the Company in relation to the goods or services or their use or application.
(b) it has not made known, either expressly or by implication, to the Buyer any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Buyer.
12.7 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
13. SPECIAL CONDITIONS
13.1 *Electrochemical sensors e.g. pH electrodes will be ‘100% tested before dispatch and will only subsequently, be replaced if they, contain visible physical defects, or statistic life data is supplied with full details of the application. Pressure transducers will be replaced only if it is clearly shown to f ail due to a defect of manufacture. No warranty will be applicable to units subject to overpressure demonstrated by open circuit bridge, plastic deformation of the sensor or excessive zero shift.
13.2 Temperature sensors warranty is 90 days limited, due to the unpredictable conditions of usage.
14.1 No goods will be accepted for return unless permission is given by the Company in writing.
14.2 No goods purchased as a “special” (specially ordered [eg “indent”] or modified away from standard) can be returned unless permission is given by the Company in writing.
14.3 A return will be accepted only if:
(a) The goods are in an unsoiled, undamaged and re-saleable condition in their original package.
(b) Request is made in writing within 7 days of delivery accompanied by a copy of the original delivery docket stating the Company’s original invoice number and stating the reason for return.
(c) All charges for freight and handling are to the Buyer’s account.
14.4 If the Buyer is a consumer, nothing in this clause 13 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
15.1 If the Company is unable to deliver or provide the goods or services, then it may cancel the Buyer’s order (even if it has been accepted) by written notice to the Buyer.
15.2 No purported cancellation or suspension of an order or any part of it by the Buyer is binding on the Company once the order has been accepted.
16. FORCE MAJEURE
16.1 The Company is not liable in any way howsoever arising under the Terms to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, the Company may suspend or terminate the Terms by written notice to the Buyer.
17.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
17.2 The Company’s failure to enforce any of these Terms shall not be construed as a waiver of any of the Buyer’s rights.
17.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
17.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.