Conditions of Use
Any term or condition of this contract which infringes any legislation whether state or federal shall be severable from this contract without effecting the remaining terms and conditions.
Subject to the provisions of any legislation whether state or federal which may control or effect the relationship between the Company and the Purchaser.
Unless otherwise inconsistent with the context the word "person" shall include corporation, "Company" shall mean and include Transcorp Australia ACN 105 391 188 and/or any of its related corporations as defined in Section 7 of the Companies (Victoria) Code which is named as the party making or accepting the order, "goods" shall include services, "Purchaser" shall mean and include the person to whom any quotation is made and shall include any person offering to contract with the Company on these terms and conditions. Words importing the singular number shall be deemed to include the plural and vice versa.
No conditions or warranties expressed or implied by law and no representations or statements are binding on the Company unless set out in this contract.
All prices are quoted for immediate acceptance and must be pre-paid. This quotation is subject to acceptance within 30 days of the date shown. The Company reserves the right to withdraw or vary this quotation at any time prior to acceptance, which is deemed to be three working days after receiving an order.
ACCEPTANCE OF TERMS
The placement of an order implies full acceptance of the Terms and Conditions as stated hereon and implied.
OFFER AND ACCEPTANCE
Any quotation made by the Company is not an offer to sell and no order given in pursuance of any offer shall bind the Company until accepted by it in writing and pre-paid. Unless otherwise agreed in writing all orders are subject to acceptance by the Company within 30 days of receipt by the Company of the Purchaser's order and these terms and conditions shall be deemed to be incorporated in any agreement between the Company and the Purchaser. Any terms and conditions contained in any order offer acceptance or invoice of the Purchaser and all representations statements terms conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.
Every endeavour will be made to deliver the correct quantity ordered but, owing to the difficulties of producing exact quantites, the Company shall not be liable if the quantity variation is 10 per cent on orders of 1,000 or more, 20 per cent on 500-999 and 30 per cent of quantities under 500. Any such variation shall be charged for or deducted pro rata.
Unless otherwise expressly agreed in writing the price of the goods shall be that price charged by the Company at the date of delivery including the amount which the Company is required to pay on account of any excise, or any other taxes or charges which may be established or levied by any governmental authority (domestic or foreign) upon the goods or any part thereof, or the manufacture, use sale of or delivery thereof.
- Any date quoted for delivery is an estimate only and unless a guarantee shall have been given by the Company in writing providing for liquidated damages for failure to deliver by the quoted date the Company shall not be liable to the Purchaser for any loss or damage howsoever arising for failure to deliver on or before the quoted date. The Purchaser shall accept and pay for goods if and when tendered notwithstanding any failure by the Company to deliver by the quoted date.
- The Company reserves the right to delivery by instalments. If delivery is made by instalments the Purchaser shall not be entitled:
- to terminate or cancel the contract; or
- to any loss or damage howsoever arising for failure by the Company to deliver any instalment on or before the quoted date.
INSOLVENCY & DEFAULTIf �
- The Purchaser makes a default in any payment due hereunder,
- A resolution is passed or proposed or a petition is presented or an application filed for the winding up of the Purchaser,
- A receiver or receiver and manager is appointed of the property or any part of the property of the Purchaser,
- The Purchaser makes or proposes to make any arrangement with its Creditors,
- The Purchaser is placed under official management,
- Execution is levied upon the assets of the Purchaser for an amount in excess of $1,000.00 and is not within seven days satisfied,
- The Purchaser commits an act of bankruptcy and/or is the subject of a Debtor's or Creditor's petition in bankruptcy or is the subject of a Bankruptcy Notice,
- The Purchaser enters into an arrangement pursuant to Part X of the Bankruptcy Act,
then, and in any such event, the Company may at its option withhold further deliveries or cancel the contract without prejudice to its right hereunder PROVIDED
HOWEVER that the Company may at any time and from time to time upon such terms as it may determine waive any of its rights under this Clause, but without prejudice to its right thereafter to rely upon the happening thereafter of any of the events hereinbefore referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.
SUSPENSION OF WORK
In the event that a Purchaser requests that part of an order be suspended for a period of 30 days or more the Company shall be entitled to payment in full for the portion of work completed.
Any order may only be cancelled by mutual agreement and in the event of such cancellation the Purchaser undertakes to reimburse and indemnify the Company for any costs expenses or charges incurred by the Company in preparation for any in the execution of an order which without limiting the generality thereof shall include an amount not less than fifty per centum of the net profit of the order had the order not been cancelled or such greater amount as the Company deems as being reasonable in the circumstances.
- No warranty is given that work done or goods supplied are suitable for the Purchaser's purpose, nor shall the Company be liable for damage resulting from unsuitability for any purposes, not for any loss resulting from third party claims occasioned by error or negligence in carrying out the work or delay in delivery.
- No warranty is given by the Company or responsibility accepted by it to ensure that goods produced comply with the Purchaser's requirements or any legislation relating to the marking and/or labelling and/or packaging of goods. Compliance with the requirements of such legislation shall be the sole responsibility of the Purchaser.
Every effort will be made by the Company to comply with any contract, but the due performance of it is subject to variation or cancellation owing to an Act of God, War, Strikes, Lock-outs, Fire, Flood, Drought, Internal disturbances, Breakdown of machinery, Fuel or power shortages, Labour disputes, Restriction of transport facilities, Prohibitions or restrictions under any law by any Government or statutory authority, Explosion, Accident, Shortage of labour or due to any other circumstances, whether of a similar nature or not, beyond the control of the Company or owing to inability to procure materials, services or articles (except at increased prices) due to any of the foregoing clauses.
All claims must be made in writing within seven days of receipt of goods by the Purchaser beyond which period no claims can be allowed. The Company shall not be bound to accept any claim which is greater in amount than the actual invoice value of the goods claimed to be faulty when delivered and any claim for damages shall be limited accordingly. Acceptance of delivery of goods returned for credit does not signify agreement to issue a credit note.
At all times the Company retains the right to immediate possession and property of any pallet used for delivery of the goods and the Purchaser agrees to indemnify the Company in respect of any pallets not returned in good order and condition to the Company when demanded and to pay damages in respect of any shortfall.
No responsibility shall be accepted for errors in proofs passed by the Purchaser.
This contract shall be governed by the law of the State in which is situated the office of the Company to which the order is addressed and the parties hereby submit to the jurisdiction of the Courts of that State for the resolution of any disputes under the contract.
Title to the goods the subject of this agreement shall not pass to the Purchaser until the earlier of:
- payment in full of the purchase price;
- bona fide sale of the goods by the Purchaser in the ordinary course of the Purchaser's business.
At any time before title in the goods passes to the Purchaser, the Company shall be entitled to retake possession of the goods and resell them and for that purpose may enter the Purchaser's premises and remove the goods, provided however that the Company agrees not to retake possession of the goods without first giving the Purchaser a reasonable opportunity to pay the whole of the purchase price.
Unless otherwise agreed in writing all goods shall be at the Purchaser's risk upon delivery to the Purchaser his carrier or agent.