- ‘The Seller’ means Caldertech Australia Pty Ltd. ABN 22 164 140 630.
- ‘The Buyer’ means the Customer, which is the person, company or organisation to whom this document Quotation / Agreement / Acknowledgement / Amendment / Delivery Note / Invoice, etc. is addressed.
- ‘The Conditions’ means the terms and conditions set out in this document, including any varied or special terms agreed in writing between The Seller and The Buyer.
- ‘The Agreement’ means the Contract /Agreement /Amendment accepted by The Buyer, for the sale and purchase of the Goods which forms the basis of a legal contract.
- ‘The Quotation’ means Sellers authorised written offer to which these Standard Sales Conditions shall apply.
- ‘The Purchase Order’ means The Buyers authorised acceptance of the Quotation and/or Agreement and these Standard Sales Conditions for the sale and purchase of the Goods.
- ‘The Amendment’ shall confirm any variation to the Agreement or confirmation acceptance of an amended Contract.
- ‘The Acknowledgement’ is The Sellers confirmation of the Agreement / Amendment, it shall not constitute acceptance of the Customers order, but provide the Customer with knowledge that the Agreement is being processed in accordance with The Sellers terms and conditions agreed.
- ‘The Goods’ shall mean the goods, products or services (including any instalment and/or any part of them) described in the Quotation / Agreement / Amendment / Acknowledgement.
- ‘The Specification’ includes all samples, plans, drawings, data or other information relating to the Goods or Services.
These terms and conditions shall form the basis of the Agreement between The Seller and The Buyer and shall supersede any terms and conditions referred to, offered or relied on by the Buyer in any purchase order, acknowledgement, letter or any other document issued or sent by the Customer. Without prejudice to the generality of the foregoing, The Seller will not be bound by any terms furnished by The Buyer in any of its documents, unless the Customer specifically draws the specific terms to The Seller`s attention and states in writing separately from such terms that it intends such terms to apply and The Seller, acknowledges this in writing on its Quotation/Agreement/Amendment. All Goods offered for sale are subject to availability.
The Buyer shall not announce or disclose the existence of any contractual arrangements between The Buyer and The Seller. The Buyer shall keep confidential all The Sellers information, commercial details, specifications, drawings, plans samples and sub-assemblies and any other matter relating to the Goods to be supplied in any way whatsoever and shall not disclose the same or any of the same to any third party except to his employees as may be necessary. All documents and drawings containing such information and any copies thereof shall upon completion of the Agreement, or its termination for any reason, be returned to The Seller.
4a. Credit Checks
In order to monitor and aid debt recovery, The Seller may make searches with credit reference agencies, which will keep a record of that search and will share that information with other businesses, The Seller may also make enquiries about the directors, partners or proprietors. The Seller reserve this right until the customer ceases trading with The Seller and all debts have been settled in full. The Seller also reserve the right to monitor and record information relating to The Buyers trade performance and such records may be made available to credit reference agencies, who will share that information with other businesses in assessing applications for credit and fraud prevention.
4b. Anti-money Laundering Regulations
The Seller reserves the right to require confirmation of the identity of The Buyer in accordance with the requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. In order to undertake these checks The Sellers may make searches with third party agencies, which will keep a record of that search and may share that information with other businesses, The Seller may also make enquiries about the directors, partners or proprietors. The Seller may be required to notify the appropriate authorities of issues relating to The Buyers affairs and may be obliged to withhold deliveries or cease trading (temporarily or permanently) without reason. The Seller shall have no liability to The Buyer for any losses which may be incurred as a result of any of the above.
The Goods shall be delivered to the delivery address agreed in the Agreement at the cost agreed, to cover the delivery and insurance, unless specifically stated in the Agreement. The time, dates or periods stated for delivery and/or completion in The Agreement are given as an estimated guide, and therefore The Seller shall not be liable for any claims whatsoever for failure to complete on the estimated time for delivery completion. The time of delivery shall take place during normal working business hours unless mutually agreed otherwise and shall not be of the essence of the contract unless expressly stipulated in writing. All deliveries shall be accompanied by a delivery note and shall be delivered suitably protected; The Buyers receipt signature shall confirm delivery acceptance. The Buyer shall notify The Seller in writing immediately of any reasons why delivery cannot take place prior to the estimated delivery date, failure to accept delivery may incur additional delivery charges at The Buyers expense.
6. Force Majeure
If delivery or completion is delayed by circumstances beyond The Sellers reasonable control such as strikes, lockouts, fire, accidents, defective material supplies, delayed receipts of brought-in goods or any other cause beyond reasonable control, a reasonable extension of time shall be granted and The Buyer shall pay any reasonable extra charges as shall have been occasioned by the delay.
Products supplied by The Seller are for sale, distribution within Australia, or agreed countries and territories. Should The Buyer decide to export purchased products from The Seller then the Customer does so at his own risk and should ensure the products conform to relevant product liability legislation in force and duty and taxes are paid accordingly. The Seller will accept no liability whatsoever for any presentations or representations made verbally by any representatives, employees or agents to the Customer or his agents, unless published on official documentation’s or written Quotations.
All reasonable effort is made by The Seller to ensure the Goods supplied under Contract are suitable presented and protected to ensure they conform to The Sellers specifications and conform to Australian legislation. It is The Buyers responsibility to check all goods at time of purchase or time of delivery. Any complaint of quality must be immediately notified in writing to The Sellers Company Secretary, sent by register post or electronic mail or facsimile together with full and clear details of the complaint, where the Goods were delivered or collected from and the time when the Goods were found to be defect. The Seller takes no liability whatsoever for: – defective products where the sell by date or calibration date has expired, breakage’s unless recorded at time of acceptance (purchase or delivery), any free issued products to be processed by The Seller or incorporated into the Goods, indirect costs or consequential costs incurred by The Buyer or his agents or his customers.
The Contract shall be governed by the laws of England, and the Customer agrees to submit to the non-exclusive jurisdiction of the Australian courts.
An invoice shall be sent to the Customer on or after delivery of the Goods or as described in the Agreement. The Customer agrees to pay the invoice total within the time stipulated in the Agreement, the ABN registration number shall appear on all invoices. The Customer accepts that late payment will incur additional costs to cover interest and administration, in accordance with the Late Payment of Commercial Debts (Interest) Bill 2003, from the date of due payment until the date of actual payment including any period after the date of any judgement.
Prices quoted The Buyer when resident within Australia are exclusive of Goods and Services Tax (GST) that shall be charged extra at the rate ruling at the time of dispatch, unless otherwise specifically stated in writing. The Seller shall be entitled to adjust the price charged for any Goods without prior notice to The Buyer to reflect any increase in cost to the Seller resulting from any rise in any costs of Goods to the Seller including currency fluctuations, alterations, changes in taxes, duties or levies or conformity with any Acts, Orders, Regulations or Bye-Laws applicable to such Goods.
11. Product Recall
The Seller shall have the sole right to instigate any product recall where the Goods supplied are found to be faulty or risk the possibility of a potential product liability claim for whatever reason, which may have been sold or passed on to a third party or incorporated into another product which has been subsequently been passed on to a third party. The Buyer shall cooperate and assist The Seller or its agents or its suppliers, with such a product recall in respect of retrieving any such Goods from his stocks or from any third parties where he has sold on or supplied the Goods.
12. Property and Risk
The property in the Goods shall pass to The Buyer upon receipt of payment in full to The Seller. Should the Customer take delivery prior to payment, then The Seller shall have the right to retrieve any Goods previously supplied by The Seller in The Buyers possession or control up to the value of the outstanding monies. If the Goods have been sold on in the normal course of business and payment has still not been received by The Seller then The Buyer shall hold proceeds of sale of the Goods on trust for The Seller, until such time as payment is received by The Seller , The Buyer remains liable for payment in accordance with the Agreement.
The Sellers products (Goods) must be handled with care, be kept separate and identifiable from other goods, in safe and secure premises, The Buyer must insure them against all risks at full replacement value until payment is made in full to The Seller. Risk in the property shall pass to The Buyer at time of despatch from The Seller (exworks,) unless agreed otherwise and stated in the Agreement. The Goods should be stored and issued to the stock rotation principle of first in first out (FIFO) returnable product containers, pallets and any other materials or products issued free of charge to The Buyer must be returned in good order when the product has been removed into proper storage or on termination or completion of the Agreement. The Seller reserves the right to charge The Buyer for any equipment unreturned at the original cost less depreciation as determined by The Seller, and to charge for non-returned containers at full replacement cost and charge at cost of any containers returned damaged, requiring repair.
Goods manufactured and supplied by The Seller shall comply in all respects with the Agreement description and/or The Specification in writing. Products supplied by The Buyer, which are to be processed or incorporated into the Goods being supplied, shall remain the responsibility of The Buyer at all times. All samples, drawings, specifications and prototypes shall conform wherever possible to Australian requirements for consumer protection, quality, product reliability, Safety Acts and Labeling Regulations at time of leaving The Sellers premises.
The Buyer is responsible for reporting to The Seller any accidental breach of the foregoing or any other concerns, detected on delivery of the Goods within three working days of delivery. Quality audits and visits may be booked and be performed by The Buyer or his agents through prior written agreement with The Seller. Any personnel visiting The Seller’s premises must observe site rules and be accompanied at all times. All information gained during site visits is to be considered as confidential.
Where a sample of The Goods has been provided by The Seller and inspected by The Buyer, it is hereby declared that such sample was provided and inspected solely to enable The Buyer to judge for himself the quality of the bulk, and not so as to constitute a sale by sample.
The Seller shall be entitled to terminate the Agreement without any liability to the Customer, should The Buyer commit a breach of contract, or makes any voluntary arrangement with its creditors (within the meaning of the insolvency Act 1986) or becomes bankrupt or becomes subject to an administration order or goes into liquidation or an encumbrance takes possession or a receiver is appointed, of any of the property or assets of The Buyer or The Buyer ceases, or threatens to cease to carry on business or The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to The Buyer and notifies The Buyer accordingly. Then The Seller shall be entitled to cancel the Agreement in respect of all or part by giving The Buyer reasonable notice at any time prior to delivery or completion of the Goods, in such an event The Buyers liability to The Seller shall be the costs including lost profit which can be shown to be incurred in performing the contract to the point of cancellation.
16. Variation and Waiver
Neither party shall be bound by any variation, waiver or addition to these terms and conditions except as agreed by both parties and acknowledged in writing on The Seller’s Agreement Amendment or official letterhead, duly authorised by the person whose name appears on the Agreement. The failure of The Seller to enforce any rights for any breach in these Terms and Conditions shall not prevent the subsequent enforcement of the right nor shall it be deemed a waiver of any subsequent rights to enforce these Terms and Conditions.
The Seller warrants the Goods where appropriate to be within calibration date when leaving the factory with the exception of an agreement between The Seller and The Buyer that the calibration date will start at a date chosen by The Buyer and agreed in writing by The Seller taking into account transit time by ocean or air freight and shelf time in the premises of The Buyer In the unusual event that any of the Goods are found to be defective, The Buyer must contact immediately The Seller who will replace the Goods in question, in accordance with The Seller’s returns Procedure.