1:General Formation and Scope of Contract
(a) These terms and conditions together with any modifications or deviations contained within any written offer of sale constitute the whole contract between Total Infrastructure Solutions PTY LTD T/A Sure Power ("the Company") and the buyer and supersede all previous communication either written or oral. Any quotation or tender submitted by the Company shall be deemed to be subject to these terms and conditions. No terms or conditions implied or contained in the buyers enquiry, specification, acceptance or order shall add too, amend or delete these terms and conditions unless expressly agreed to in writing by a duly authorised representative of the Company.
(b) It is the responsibility of the buyer when signing any documentation to which these terms and conditions apply to ensure that the goods ordered comply with and conform to the buyers requirements and are suitable and sufficient for the buyers purpose.
(c) All offers of sale remain valid for acceptance for 30 days from date of offer only, unless expressly varied in writing.
(d) The buyer acknowledges the Company's licence to use or ownership of the patents, trademarks or design principles contained within the goods manufactured or supplied by the Company and in particular acknowledges that any attempt by the buyer, its servants or agents to copy in whole or part the layout, circuitry or any other design principal or misuse any trademark will render it liable to the Company for the violation or infringement of its licence, trademark, copyright, patent or registered design.
(e) Failure by the Company to insist upon strict performance of any term warranty or condition of a Contract to which these terms and conditions apply shall not be deemed to be a waiver thereof or any rights the Company may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
(f) Any tender or quotation by the Company includes only such goods, accessories and works as are specified therein. Unless otherwise specified, all specifications, drawings, descriptive matters and particulars of weights and dimensions submitted with such quotation, are approximate only and the description and illustrations contained in Company catalogues, price lists and other advertising matter are intended merely to present a general idea of the goods described therein and none of these shall form part of the Contract arising from acceptance of any quotation.
(g) Goods will be carefully inspected and where practicable subjected to standard tests at the company’s works before dispatch. If special tests or tests in the presence of the buyer or its representative are required these, unless otherwise agreed, will be carried out at the Company’s works and may be charged for as an extra. In the event of the buyer, after seven (7) days notice in writing of the time and place of any such test, not being present or represented, the tests will proceed and in that event shall be deemed to have been made in the presence of the buyer.
(h) Any performance figures included in any quotation are based on experience, and as such are expected to be obtained on test. No liability is accepted by the Company if these figures are not obtained unless they are specifically guaranteed and then are subject to recognised tolerances and rejection limits applicable to such figures. Reasonable time and opportunity must be given to comply with the terms of any such Guarantee before the Company can incur liability. The buyer assumes responsibility for the capacity and performance of the goods supplied by the Company being sufficient and suitable for the buyer’s purpose.
(i) In the event of the cancellation or suspension of the manufacture on the buyer’s instruction or the suspension of the work because of the lack of instruction from the buyer, the Contract price shall be increased to cover any consequential extra expenses incurred by the Company.
(j) The Company reserves the right to incorporate minor modifications affecting electrical performance, physical factors, material and components, provided that changes made will not serve or degrade performance and /or quality below the level specified in the quotation.
(a)The Company shall be entitled to adjust any price quoted by it or stated in any documents forming the contract between it and the buyer to take account of variations in the cost of the goods and services ordered by reason of variations in exchange rates, the cost of materials, costs of complying with any new requirement imposed by Statute or Regulation, rates of wages and hours of working and any other condition of employment required by law or by any award, determination or agreement, the cost of services including freight, cartage, insurance, customs duty, and tariff classifications, statutory and government or local government authority charges.
(b) All orders will be invoiced at the prices in effect at the time of delivery.
(c) All prices unless otherwise expressly stated are ex-warehouse and exclusive of Goods & Services Tax unless specifically shown. The buyer shall be responsible for the cost of freight and insurance.
(d) All prices quoted are subject to these terms and conditions.
(e) No retentions shall be made by the buyer unless provided for in any quotation or tender submitted by the Company.
(f) Unless otherwise stated in any quotation or tender, no provision is made for erection, installation or commissioning of goods.
(g) When installation, erection or commissioning is included in a quotation, such work is to be completed within the time limit stated in the quotation, provided that the buyer is able to give the Company access to the site and proper facilities for carrying out the work for a reasonable time or as otherwise stipulated prior to the date of completion. Written notification shall be given when the premises are ready for the Company to begin work. If there is any delay in completion of the work caused through the buyer’s failure to do anything which that the buyer should do, then all expenses incidental to such delays shall be paid by the buyer. When installation, erection or commissioning is carried out by the Company, the Company accepts no responsibility whatsoever for the condition of the site or premises where the goods are to be installed. Any damage caused to the goods as a result of the condition of the site or premises shall be the buyers responsibility and is specifically excluded from the warranty provisions hereinafter appearing.
(a) For Account customers payment terms are strictly 30 days from date of invoice or as otherwise agreed in writing.
(b) The company reserves the right to charge interest at bank overdraft rates on any amounts outstanding beyond the due date for payment.
(c) The company may refuse delivery of additional orders if outstanding amounts are overdue beyond 60 days from invoice date.
(d) Legal action shall commence when outstanding amounts are overdue beyond 90 days from invoice date.
(e) The Company reserves the right to submit progress payments against works completed and the value of materials on hand to a total of 90% of the contract price during the period of the Contract, with a final claim of 10% of the contract price being submitted when goods are available for delivery to the buyer.
4:Delivery, Title and Risk
(a) Unless otherwise expressly agreed in writing the buyer shall take delivery from the Company's premises.
(b) Risk in the goods shall pass to the buyer upon delivery of the goods to the purchaser or delivery of the goods into the custody and control of the purchaser or collection of the goods by the purchaser’s agent or courier.
(c) Property in and title to the goods shall not pass to the buyer until payment in full is received by the Company from the buyer. Until payment is fully received by the Company, the buyer shall hold the goods as trustee for the Company and as bailee of the Company.
(d) Until payment in full is received by the Company, the buyer shall:
- Store separately goods which have not been paid for.
- When reasonably practicable, mark and identify the goods as being the property of the Company.
- Keep separate records in relation to the proceeds of sale of any goods which have not been paid for, bank the proceeds of any such sale in a separate account and immediately remit such funds to the credit of the Company and until payment is forwarded to the Company, shall hold such funds as trustee for the Company.
- If any goods are used in a manufacturing process or mixed with other materials, the buyer shall record the value of the goods so consumed in relation to each unit of finished product and upon sale of any unit of the finished product immediately remit that amount from the proceeds of sale to the Company.
(e) If the buyer does not pay for any goods on the due date specified on the invoice, the Company is hereby irrevocably authorised by the buyer to enter into the buyer’s premises (or any premises under control of the buyer or as agent of the buyer if the goods are stored at such premises without prior notice) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the buyer whatsoever. The Company may exercise this right without prejudice to any other right it may have against the buyer.
(f) Notwithstanding the provisions above, the Company retains the right to take any such further action as it considers necessary against the buyer for the recovery of the purchase price.
(g) Any time quoted for the dispatch of goods shall run from the receipt by the Company of a written order to proceed with manufacture or supply and the provision to the Company of all information required by it to proceed with the manufacture or supply of the order forthwith. All dates of dispatch are to be treated as estimates only and do not constitute any contractual obligation unless the Company has specifically contracted in writing to dispatch within a specific time or by a specific date. Any such contractual obligation is subject to the Company not being delayed by any cause whatsoever beyond its reasonable control, including without prejudice to the foregoing generality, instructions or lack of instructions from the buyer, strikes, lockouts, wars, perils of the sea, lack of availability of port or unloading facilities, fire, accident, failure of manufacture to deliver to the Company, or failure of supplies to the Company.
(h) If the buyer is unable is unable to take delivery of the goods when ready, suitable storage will be arranged in accordance with the buyer’s written instructions and at the buyer’s risk and cost. If the delay in delivery is at the request of the buyer, then payment shall be made in accordance with these conditions of sale as if effective delivery had been made, but exclusive of delivery, erection and associated charges where separately shown and the buyer shall pay to the Company on production by the Company of satisfactory evidence that the claim is correct, all costs incurred for storage, protection, insurance, transport and other charges arising from such delay
5: Product Warranty
(a) The Company warrants that goods manufactured by it shall be free from defect in manufacture for a period of 12 months from date of invoice. Should any fault occur within that period as the result of faulty workmanship or materials, the Company will make all necessary repairs, or at its discretion, replace the product at no charge to the buyer except for freight.
(b) For goods sourced from a third party, the Company shall pass on any manufacturer’s warranty to the buyer from date of invoice. It is the manufacturer’s discretion to repair or replace goods deemed to be defective as a result of faulty workmanship or materials.
(c) All goods must be returned to the Company or its representative for inspection or testing to assess if a claim is justified. It is the responsibility of the buyer to return the goods for inspection and all freight costs are the responsibility of the buyer.
(d) This warranty is negated and will not apply in the following circumstances;
- i) If no proof of date of purchase can be produced.
- ii) If the product has been used in a manner beyond its design parameters.
iii) If the product is tampered with or repaired by personnel not authorised by the Company.
- iv) In respect of loss or damage caused by rough treatment.
- v) If the product is not used and maintained in accordance with the Company's or the manufacturer's instructions or recommendations.
- vi) In respect of loss or damage caused by an Act of God or any other cause not within the Company's control.
(e) Goods returned under warranty for repair or testing will incur a charge to be fixed by the Company if no fault is found.
(f) The buyer shall bear freight charges for returning the goods for inspection and for the delivery of any replacement or repaired product from a justified warranty claim.
(g) This warranty is conditional upon the goods supplied by the Company being located at all times in a cool dry location, free from corrosive fumes and electrically conductive dust or powder.
(h) When goods supplied by the Company are installed, erected, commissioned or fixed by a third party for the buyer the Company shall not be liable for any loss or damage caused by incorrect installation, erection, commissioning or fixing, even if carried out on the Company’s advice or to the Company’s specification unless the Company has expressly contracted to provide technical assistance or service
(i) Save for the express conditions and warranties herein contained all other conditions or warranties (whether as the quality, fitness for purpose, merchantable quality or any other matter) expressed or implied by statute, common law, equity, trade custom, usage or otherwise are hereby expressly excluded provided that nothing in these terms and conditions shall exclude or limit any breech of a term or condition implied by law, the exclusion or limitation of which is not permitted by law.
(j) The Company may vary these warranty conditions from time to time in part or in whole. Any such variations will only be recognised in writing by a duly authorised officer of the Company.
6: Claims and Return of Goods
(a) No claims will be recognised in respect of any mistake, damage, shortage or oversupply of goods after 7 days from invoice date.
(b) Unless otherwise expressly agreed in writing the Company shall not accept any conditions providing for the payment by it of liquidated damages or other penalties for delayed delivery of goods or provision of information, for delayed erection programs or any reason whatsoever.
(c) The Company will not accept return of goods for credit unless prior approval is granted by the Company. Goods returned without approval will not be received.
(d) Goods approved for return for credit must be received in good order and condition, be in saleable condition and be returned within 7 days from invoice date.
(f) The buyer must provide invoice number when returning goods approved by the company.
(g) The buyer shall pay a 20% restocking fee for handling.
7: Limitation of Rights and Remedies
(a) The Company and buyer recognise that circumstances may arise entitling the buyer to damages and possibly to cancel or be discharged from the contract as a result of the breach or other fault on the part of the Company and have agreed that the buyers remedies and the Company’s liability will be limited as set forth below and that these provisions will survive notwithstanding the buyers election if so entitled to otherwise cancel or be discharged from the contract
(b) For breach or default by the Company under or in connection with the provisions of this contract and without limiting the generality of the foregoing, whether arising under the provisions headed “Product Warranty” or otherwise howsoever, including breach or default entitling the buyer to cancel or otherwise be discharged as aforesaid and whether in the nature of a breach of conditions or fundamental term or fundamental breach or breaches, the buyers exclusive remedies shall be:
- i) Election if so entitled to cancel or be discharged as aforesaid.
- ii) Payment by the Company of the buyer’s damages to a maximum of the purchase price stated in the quotation for the specific goods that cause the damage, or that is the subject of or that is directly related to the breach or default.
In no event shall such damages include, nor shall the Company be liable for, any specific, indirect, consequential damages even if the Company has been advised of the possibility thereof or ought to have been aware of the possibility thereof, including but not limited to the amounts representing loss profits, loss business revenue, failure to realise expected savings, amounts arising from the buyers failure to perform the buyer’s obligation to any other party, amounts arising from any claim against the buyer by any other party or any other commercial or economic loss of any kind, or any other amounts howsoever calculated.
- c) Notwithstanding the foregoing, in no event shall the Company be liable for any loss, injury or damages arising from the buyer’s responsibilities as set forth in this contract, or from the omission of any other party or from any cause (including but not limited to delay in performance of any of the Company’s obligations hereunder) beyond the Company’s control.
- d) The foregoing shall apply in respect of any claim, demand or action by the buyer irrespective of the nature of the cause of action underlying the same, including but not limited to breach of contract or tort including negligence or misrepresentation.
- e) The Company does not accept conditions imposing penalties of any type for delayed delivery of goods or delayed erection programmes or for any reason whatsoever.
8: Governing Law
Any contract between the Company and the buyer shall be subject to the laws of Australia and the parties submit to the jurisdiction of the Australian Courts.