TERMS AND CONDITIONS OF SALE
All Orders given to Fallsdell Machinery Pty Ltd (hereafter Fallsdell), ABN No 76 977 877 192 are subject to the following Terms and Conditions.
Application of Terms and Conditions and Definitions
These terms and conditions of sale hereafter referred to as the (“Agreement”) apply to and govern all tenders and quotations submitted by, all orders placed with, and all contracts entered into by Fallsdell Machinery Pty Limited (Fallsdell) whereby goods and/or services and/or machinery are supplied, provided and/or delivered (“supply” or “supplied”) by Fallsdell.
Any Agreement may be varied only with Fallsdell’s prior written consent.
Purchaser means anyone corporate or individual issued with a tender, quotation, order or tax invoice by Fallsdell.
Goods where referred to in this agreement also includes new and used Plant, Machinery and Services.
ACL means the Australian Consumer Law being Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Claim means a claim, demand, remedy, suit, injury, damage, loss, cost, expense, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred, however arising and whether ascertained or unascertained, or immediate, future or contingent, and includes third party Claims.
GST has the same meaning as in the New Tax System (Goods and Services Tax) Act 1999 (Cth).
Personnel in relation to a party means the party’s officers, officeholders, employees, agents and contractors.
Purchase price means amount invoiced by Fallsdell.
To the extent that any conflict exists between these terms and conditions of sale (or as they may be varied in accordance with this clause 1) and any other documentation or correspondence forming part of any Agreement these terms and conditions of sale (or as they may be varied in accordance with this clause 1) shall be paramount and prevail.
Any order or offer made by any purchaser shall not be binding on Fallsdell until accepted by Fallsdell in writing.
A tender or quotation submitted by Fallsdell may at any time prior to acceptance of a quotation by the Purchaser in respect of the supply of goods and/or services be varied or withdrawn by Fallsdell. Clerical, typing or other errors made in, or in respect of, any tender or quotation shall be subject to correction by Fallsdell prior to acceptance of the quotation by the Purchaser and the corrected tender or quotation shall apply.
To the extent that there is any inconsistency existing between any terms and conditions appearing in a purchaser’s order and these terms and conditions of sale then these terms and conditions shall only apply and the acceptance by a purchaser of the supply by Fallsdell of goods and/or services the subject of such an order shall constitute an acceptance by the purchaser of the supply by Fallsdell of such goods and/or services solely on these terms and conditions of sale.
These terms and conditions of sale replace in their entirety any previous terms and conditions of sale published, issued by used by Fallsdell or any division or subsidiary of Fallsdell.
No binding contract shall exist until the Purchaser’s order has been accepted in writing by Fallsdell.
Quotations and Orders
Quotations given and orders accepted are subject to the following conditions:
Unless otherwise agreed in writing, quotations given and orders accepted are based on Fallsdell’s rates and costs as at the date of quotation of materials, transport, labour and other costs. The price may be increased by the amount of any increase of ten percent (10%) or more in the cost of any such item or any other factors (including any change in duties and exchange rates) affecting Fallsdell’s cost of supply, production or delivery of the goods (“Relevant Cost Change”). In the event that a Relevant Cost Change occurs, Fallsdell will immediately provide the Purchaser with an open book costing and invoices in respect of the affected goods and/or services.
Without limiting the generality of the foregoing, any alteration in quantity, sizes, specification or delivery may necessitate an adjustment of prices.
No order may be suspended, cancelled or amended without Fallsdell’s agreement in writing and the Purchaser shall accept liability for all reasonably, direct costs incurred by Fallsdell, including purchases, stocks and work in progress consequent upon the suspension, cancellation or amendment of any order agreed to by Fallsdell.
Orders are accepted subject to Fallsdell’s minimum order conditions and manufacturing limitations specified for various items.
Despatch and delivery times shall be agreed in writing between the parties. Fallsdell will not be responsible for delays in the delivery of goods caused by or incidental to floods, earthquakes, storms, war, fires, pandemic, industrial action, an incorrect address being provided by the Purchaser for the delivery of goods or any other unavoidable, unforeseeable cause beyond Fallsdell’s control (“force majeure event”). In these circumstances any part of the goods delivered, or able to be delivered, or later delivered will be accepted and paid for by the Purchaser and any such delay in delivery will not relieve the Purchaser from its obligations to pay Fallsdell provided that Fallsdell immediately gives the Purchaser prompt notice of the circumstances including: (i) full particulars of the force majeure event; (ii) an estimate of its likely duration; (iii) the obligations affected by it and the extent of its effect on those obligations; and (iv) the steps taken to rectify it.
Fallsdell must use its best endeavours to remove, overcome or minimise the effects of that force majeure event as quickly as possible. However, this does not require Fallsdell to settle any industrial dispute in any way it does not want to or make any concessions to any individual or corporation for whatever reason.
Where delivery, dispatch or payment is to be made by installments, each delivery, dispatch or payment shall be deemed for such purpose to be the subject of a separate contract and any failure whatsoever by either party in respect of any particular despatches, deliveries or payments shall not entitle the other party to repudiate the order or any installments remaining to be delivered thereunder.
If for any reason the Purchaser is unable to accept delivery of the goods at the time when the goods are due and ready for delivery, Fallsdell will either store at its own premises or arrange for suitable outside storage until actual delivery and the Purchaser shall be liable to Fallsdell for the reasonable cost of such storage, including any additional handling, insurance and transport costs.
Fallsdell reserves the right to apply delivery charges to all deliveries into the Purchaser’s stores. Fallsdell may also apply additional freight charges for deliveries outside capital cities or by alternative means of transport.
Fallsdell shall be under no obligation to insure goods while in transport.
Risk of any loss damage or deterioration in the goods ordered shall pass to the Purchaser as soon as the goods have been loaded onto the nominated transport.
Fallsdell accepts no liability for off-loading of goods and the Purchaser shall keep Fallsdell indemnified from any and all claims whatsoever and howsoever arising from such off-loading.
Fallsdell reserves the right to dispatch the goods by the most suitable form of transport and to pack the goods in the most suitable manner.
Property in the goods shall pass to the Purchaser only upon Fallsdell receiving full payment for the goods, and until payment is received Fallsdell reserves the following rights in relation to those goods until the account specifically owed by the Purchaser in relation to those goods is fully paid:
legal ownership of the goods; and
to enter the Purchaser’s premises (or the premises of any associated company or agent where the Goods are located) on giving at least 48 hours prior written notice to the Purchaser without liability for trespass and retake possession of the goods, provided that Fallsdell complies with the Purchaser’s access and security policies at all times which on such premises. Fallsdell will not be responsible for any damage arising in connection with the Fallsdell’s failure to comply with the Purchaser’s access and security policies;
In addition to any lien to which Fallsdell may by Statute or otherwise be entitled, Fallsdell shall, in the event of the Purchaser’s insolvency, bankruptcy or winding up, be entitled to a general lien for the unpaid price of any goods sold and delivered to the Purchaser under any contract pursuant to these Conditions of Sale.
Subject to clause 7.9, the purchaser understands that all goods supplied by Fallsdell are second hand unless specified by contract as new.
Subject to clause 7.9, the purchaser purchases any such second hand goods relying on its own inspection as to the quality of the goods, and as to the existence or otherwise of any fault.
Subject to clause 9, Fallsdell, directors and staff are not responsible in any way for second hand goods sold by them, and, in particular, are not responsible for any faults or defects in any second hand goods purchased from Fallsdell.
Subject to clause 7.9, the purchaser understands and accepts that no warranty applies to second hand goods unless specified by Fallsdell in writing.
The purchaser understands that the responsibility is theirs with respect to the safe use of second hand goods and to ensure all safety devices are installed and checked by a competent authority before they are installed and/or used.
The purchaser understands when no safety devices are installed on new and second hand goods, it is their responsibility to make all necessary enquiries and as to whether such devices are needed and if needed, have such safety devices installed in compliance with all standards of safety and ensuring the safety standards comply with the relevant occupational health and safety requirements applicable in both State and Federal law.
Subject to clause 7.9, if the purchaser on sells the second hand goods purchased, they will advise the new purchaser that no warranty applies to such goods and provide a copy of these terms and conditions.
Subject to clause 7.9, Fallsdell shall not be liable for any defects, malfunctions, claims for loss, damage or injury of any kind whatsoever, whether to the purchaser or to any party purchasing such goods from the purchaser.
Fallsdell agrees to and it is a condition of every sale of goods made to the Purchaser that Fallsdell notifies the Purchaser in writing at the time of quotation (or such other time prior to delivery) for those goods of any and all defects or malfunctions in the second hand goods known to Fallsdell as at the date of the quotation.
Work Health and Safety
All purchasers must conduct their own inquiries, hazard and risk assessments for compliance with the Work Health and Safety Act 2011 (NSW), associated Work Health and Safety Regulation 2011 (NSW) Work Health and Safety Act 2011 (Cth) and Work Health and Safety regulations 2011 (Cth) and all other Work Health and Safety relevant Codes of Practice given the context in which they will use the goods, plant and/or equipment
Liabilities and Indemnities
Under no circumstances will Fallsdell be liable for any loss of profits or any consequential, indirect or special loss damage or injury of any kind whatsoever suffered by the purchaser or its servants, agents and contractors and the purchaser acknowledges this express limit of liability and agrees to limit any claim accordingly. In particular, the purchaser acknowledges that under the agreement the provisions of the Sale of Goods Act 1923 (NSW) shall not apply to the extent permissible by law.
The Purchaser will at all times indemnify, hold harmless and defend Fallsdell, its officers and employees (in this clause referred to as “those indemnified”) from and against any loss (including legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising directly from any claim, suit, demand, action or proceeding by any person against any of those indemnified where such loss or liability was as a direct result of a wrongful, unlawful or negligent act or omission of the Purchaser its employees, agents or sub-contractors in connection with these Terms and Conditions.
Fallsdell makes no warranty as to the description or possible uses of the goods.
The purchaser purchases and uses the goods at its own risk and, to the fullest extent permitted by law, the purchaser indemnifies Fallsdell and its Personnel from, and the Fallsdell and its Personnel will not be liable for, all Claims resulting directly or indirectly from the purchaser or its Personnel’s use of the goods or negligence.
If Fallsdell has complied with all its obligations under this Agreement, Fallsdell’s maximum aggregate liability in relation to this Agreement or the sale and subsequent use of the goods will not exceed the Purchase Price.
Fallsdell will be under no liability for any special, indirect or consequential loss, damages or expenses suffered by the purchaser or for any liability to third parties incurred by the Purchaser.
All warranties and conditions whether implied by statute or otherwise are excluded to the extent permitted by law.
The purchaser acknowledges and agrees that it acquires the goods for business purposes, and accordingly the guarantees, rights and remedies provided under the Competition and Consumer Act 2010 (Cth) do not apply.
Notwithstanding any provision of this Agreement except clause 9.8, and subject always to clause 9.8, if the purchaser is a consumer for the purposes of the ACL, the goods come with guarantees that cannot be excluded and the purchaser may be entitled to certain remedies including refunds, repairs and compensation.
For the purposes of clause 9.9, if the purchaser is a consumer for the purposes of the ACL, Fallsdell makes each guarantee required of a supplier to a consumer under Part 3-2 of the ACL but only to the extent required by the nature of the goods , purchase and the transaction.
Fallsdell is not liable to the purchaser for any acts or omissions of any Personnel supplied by Fallsdell where the Personnel is acting under the purchasers direction and control and the purchaser indemnify the Fallsdell against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against Fallsdell and any environmental loss, cost, damage or expense) arising from or incurred in connection with such acts or omissions.
Fallsdell’s liability with respect to any goods sold to the purchaser will be limited to refunding payment of the Purchase Price made. In no event will Fallsdell be liable for indirect, incidental or consequential damages.
The Purchaser agrees to pay to Fallsdell the Price in full before the dispatch of the Goods, unless the Purchaser has completed and returned a Credit Application Form and Fallsdell has agreed to extend credit to the Purchaser, in which case the Purchaser agrees to pay the Price in full on or before the expiry of agreed payment period.
If the Price is not paid in full as and when due in accordance with clause 9.1, then FALLSDELL shall have the right to charge interest at a rate of 1.25% per month from the due date to the date that the account is paid in full and should the account be referred to a collection agency the Applicant shall pay a 15% collection fee plus legal costs on a solicitor/own client basis.
If Fallsdell agrees to extend credit to the Purchaser, the Purchaser agrees to the terms stated in the Credit Application Form in addition to the terms and conditions of this agreement.
The Price is GST exclusive unless stated otherwise. The Purchaser must pay to Fallsdell any GST which Fallsdell is liable to pay in respect of supplies made by Fallsdell under these Terms and Conditions, at the same time and in the same manner as first payment is made for the supply to which the payment relates.
Prices, fees and charges are subject to change without notice prior to acceptance of a particular quotation by the Purchaser.
This agreement is governed by the laws of New South Wales, Australia. The parties each agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.
The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (the Guidelines).
The terms of the Guidelines are hereby deemed incorporated into this agreement.
This clause shall survive termination of this agreement.
Special conditions relating to sales of GlaxoSmithKline Consumer Healthcare Australia Pty Ltd ABN 603310292 of 82 Hughes Avenue Ermington NSW. “(GSK)” goods.
The Purchaser acknowledges that the goods purchased are subject to a separate agreement between Fallsdell and GSK.
As an additional condition of this agreement and subject to this clause 13 it is acknowledged by the Purchaser that completion of this agreement may be delayed.
Completion of this agreement may be extended by Fallsdell at their absolute discretion from time to time.
If GSK has not made available to Fallsdell goods the subject of this agreement the following provisions apply in addition to those stated above:
Fallsdell may by notice in writing to the Purchaser extend the date for completion to a date no longer than 12 months into the future;
If after the 12 month period referred to in 13.4.(a) above (or such other shorter period as agreed in writing has expired) either party may by notice in writing to the other rescind the agreement wherein Fallsdell will refund to the Purchaser any deposit paid pursuant to the agreement (or tax invoice) and Fallsdell will not otherwise be liable to pay the Purchaser any damages costs and/or expenses of any nature whatsoever.
The purchaser acknowledges that some goods sold by Fallsdell under a separate agreement with GSK may be “Restricted Equipment” as determined by Fallsdell in their absolute discretion.
As an additional condition for the sale of Restricted Equipment the purchaser agrees to provide to GSK with a signed letter of intended use and purpose and that such purchase of restricted Equipment is available only on condition that GSK approves the prospective purchaser.
In addition to the provisions of clause 13.6 above any prospective Purchaser agrees to provide GSK an end user declaration form approved and provided by Fallsdell and to be issued to GSK before any goods or restricted equipment are removed from any premises.
Privacy Acknowledgement & Consent.
The purchaser acknowledges that the purpose to which the information contained in this Agreement may be put include advising the Purchaser about products and services, conducting customer surveys and matters relating to: warranties, product recalls and other matters relating to the Product and the Purchaser. In respect of these purposes, the Purchaser consents to disclosure of the information contained in this Agreement to companies related to Fallsdell and to third party service providers.
The terms, conditions and other provisions in this Agreement comprise the entire agreement between Fallsdell and the Purchaser.
Time shall be of the essence in respect of the Purchaser’s obligations hereunder to make payment for and take delivery of the goods.
Any notice required to be served on the Purchaser hereunder may be served personally or be left at or sent by letter or telegram addressed to the Purchaser at the Purchaser’s address shown on front of this Agreement, or, if the Purchaser’s fax number is specified on the front of this Agreement, sent by facsimile transmission to that number. Or if an email address is provided to that email address. If posted, the notice shall be deemed to be served 24 hours after posting. If sent by facsimile transmission the notice shall be deemed served if the sending facsimile machine receives a message that the transmission was OK. If emailed it shall be deemed to be served once either a read receipt is provided or 24 hours after sending the email
If any term condition or other provision or part thereof of this Agreement is or shall be for any reason invalid or unenforceable at law, the validity and enforceability of the remainder shall not be affected.
The Purchaser agrees that Fallsdell shall have full power at its discretion to give time for payment or for the observance of any term, of this agreement or to make any other arrangements with any other person or persons or corporation without prejudice to this agreement or any liability thereunder.
Words importing the singular number include the plural and vice versa. Words importing individuals include bodies corporate.
Where the Purchaser comprises more than one person, each person is jointly and severally liable to perform the Purchaser’s obligations under this Agreement. “Purchaser” includes the Purchaser’s assigns and successors in title.
No amendment or variation to this Agreement has any force unless it is in writing and agreed to by the parties.