CONDITIONS OF SALE
SOUTHERN CROSS COMPRESSORS (AUSTRALIA) PTY. LTD.
These terms and Conditions do not apply to consumer sales insofar as they would be void under Part V of the Trade Practices Act. 1974 (as amended).
1. Definitions
"The Company" means Southern Cross Compressors (Australia) Pty. Ltd.
2. General
Subject to the above statement in relation to consumer sales these terms and conditions govern all contracts entered into by the Company for the supply or sale of goods or services. Any order given to the Company or the acceptance of a tender by the Company shall be deemed to constitute an agreement to be bound by these terms and conditions.
3. Other Printed or Standard Conditions
It is agreed that only these conditions shall apply to contracts between the Company and the Purchaser and any documents emanating from the purchaser which contain printed or standard conditions which have been or shall be sent by the Purchaser are received by the Company on the understanding that they appear on the Purchaser's documents because they are printed thereon but have no legal effect whatever and the Purchaser waives any rights which the Purchaser otherwise might have to rely on such conditions.
4. Previous Conditions and Variations
These conditions shall have effect in place of any other conditions which may have previously been notified by the Company to the Purchaser. No additional variation to these conditions shall be made or apply unless expressly agreed in writing by the Company and Purchaser.
5. Drawings and other Literature
Drawings, explanatory and illustrated literature and any other appended matter submitted for descriptive or explanatory purpose are estimated only and are not to be construed as part of the contract or exact in dimensions, details, specification or otherwise. All drawings and specifications are and shall remain the property of the Company and must not be copied, reproduced or divulged either directly or indirectly to any other person without the prior permission of the Company. Any statement made by the Company, it's agents or distributors concerning the plant or goods or any part thereof having regard to the capacity, output performance, efficiency or suitability for any particular purpose is made only as bonafide estimate without warranty as to its correctness except in the case where there is some express provision contained in the contract. The Company, its agents or distributors shall in like manner not be liable for any inaccuracies in any drawings, bills of quantity specifications or any other information supplied by the user, person or firm or on behalf of the user unless agreed in writing and the Company shall not in any circumstances be liable in respect of any accidents or happenings where such information happens to be faulty or inaccurate.
6. Tenders
Any tenders submitted by the Company shall be deemed to have been withdrawn if not accepted within 60 days.
7. Dispatch and Delivery
Any provision involving delivery or completion shall not commence until such time as the Company is in possession of full and final instructions. Any time or date quoted by the Company for delivery is given as an intended estimate only and the Company shall not be liable in any manner whatsoever for any loss or damage whatsoever for failure to deliver within such time.
8. Property
(a) The property in the goods delivered shall not pass to the Purchaser and the Purchaser shall keep the goods as bailee and trustee for the Company until the price of the goods shall have been wholly paid and until any other sums whatsoever which are due from the Purchaser to the Company whether under this contract or otherwise, howsoever, shall have been paid in full. Notwithstanding the foregoing the goods are the entire risk of the Purchaser from the time of delivery.
(b) In this contract "Time is of the essence".
(c) Subject to any other express agreement, the terms of this sale are that payment is to be made within 7 (seven) days of the Company delivering the goods ordered. If payment is not made within this period, the seller shall have the option to avoid the contract.
9. Damage and Loss in Transit
Where the price quoted by the Company includes delivery or where the Company delivers on behalf of the Purchaser the Company and the carrier must receive written notification of any damage within 7 days of delivery otherwise no liability can be accepted for such damage.
10. Price Variation
Prices are based on the current metal industry award governing wage rates, hours of work and other conditions of employment and should the award be varied then our tender price will be varied.
11. Patents, Registered Design and Trade Marks
(a) When machines or parts of machines are supplied to the Purchaser's designs the Company is not to be liable for infringement of any patents, or other rights and the Purchaser shall indemnify the Company fully in respect of damages or costs incurred by the Company in regard to any proceeding brought against the Company by any party claiming patent or other rights in respect of goods manufactured by the Company to the Purchaser’s order.
(b) The Purchaser warrants that any design or instruction furnished or given to the Company shall not be such as will cause the Company to infringe any letters patent, registered designs or trademarks, in the execution of the Purchaser's order.
12. GST
GST is not included in the price quoted and shall be an additional charge at the ruling rates except when or where exemption applies.
13. Suspension or Cancellation of Contract
(i) All reasonable expenses incurred by the Company by reason of the suspension or cancellation of the contract by the Purchaser or his nominated representative (unless caused by some default on the part of the Company) or by reason of the Company being prevented from or delayed in proceeding with the contract by the Purchaser, the Purchaser's nominated representative or some other contractor employed by the Purchaser, shall be added to the contract price, provided that no claim shall be made under this clause unless the Company has within a reasonable time after the events giving rise to the claim, given to the Purchaser or his nominated representative advice in writing of its intention to make such a claim.
(ii) If work on the contract or any portion thereof is suspended or cancelled as aforesaid by the Purchaser or his nominated representative before the equipment or such portion thereof comprising of the contract is delivered to the site, the Purchaser shall pay for such equipment in accordance with clause 8 (c) of these terms and conditions of sale.
14. Purchaser's Default or Insolvency
The Company is to have the right to cancel further deliveries in any case of default in payment, breach of agreement, bankruptcy, or in the case of a limited company, the appointment of a receiver or commencement of liquidation other than for amalgamation or reconstruction purposes.
15. Force Majeure
Without prejudice to the generality of any previous exclusion or limitation of liability the Company shall not be liable for any failure to fulfil any term of any transaction governed by these conditions if fulfilment has been delayed, hindered or prevented by any circumstance whatsoever which are not directly within the Company's control and if the Company is able to fulfil some but not all of the demand for its products the Company may allocate its available supplies amongst its customers, in such manner as the company in its absolute discretion considers to be fair.
16. Arbitration
(1) If at any time any question, dispute or difference shall arise between the Purchaser and the Company, either party shall , as soon as reasonably practicable, give to the other notice in writing of the existence of such question, dispute or difference specifying its nature and the point at issue, and the same shall be referred to the arbitration of a person to be agreed upon, or failing such agreement, to some person appointed or the application of either of the parties hereto by the President of the time being of the Institution of Engineers of Australia provided that decision, instruction or order of the Purchaser or his nominated representative shall not be referred to arbitration unless written notice has been given by the Company to the purchaser within fourteen days of the question, dispute or difference arising.
(2) Performance of the contract shall continue during arbitration proceedings unless the Purchaser or his nominated representative shall order the suspension thereof or of any part thereof , and if any such suspension shall be ordered, the reasonable expense of the Company occasioned by such a suspension shall be added to the contract price. No payments due or payable by the purchaser shall be withheld on account of pending reference to arbitration.
(3) All arbitration proceedings and matters relating thereto shall be conducted in accordance with the Arbitration Act - or any statutory modification thereof currently in force.
17. Law of Contract
The contract shall in all respects be construed in accordance with the laws of the State of Victoria.
18. Goods Returned for Credit
(i) Goods returned for credit will only be accepted by prior agreement with the General Manager or Parts Manager or to the extent that they have been wrongly or over supplied and they have been returned within 14 days of the invoice date. Goods returned for credit after 14 days will only be accepted at the discretion of the company.
(i) In all cases and in any event except where the goods have been wrongly or over supplied, a restocking fee shall apply.
(ii) The company reserves the right not to accept goods returned for credit for reasons aforenoted and not limited to:
a) The goods being returned in a non merchantable condition;
b) The goods being a non-stocked, non-standard item, or being altered or made to order or specially procured for the specific purposes of the customer.
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