AIR TECHNOLOGY GROUP PTY LTD A.C.N. 095 393 463
TERMS AND CONDITIONS APPLYING TO THE SALE OF GOODS
THESE ARE THE ONLY EXPRESS TERMS, CONDITIONS AND WARRANTIES UPON AND SUBJECT TO WHICH GOODS MAY BE SOLD AND/OR SERVICED BY THE COMPANY TO THE CUSTOMER. THEY MAY BE VARIED OR WAIVED BY THE COMPANY ONLY IN WRITING. THE CUSTOMER SHOULD NOT RELY ON ANY PROMISE, REPRESENTATION, ADVICE OR WARRANTY OTHER THAN THOSE CONTAINED HEREIN. THE COMPANY SHALL NOT BE LIABLE IN ANY WAY WHATSOEVER TO THE CUSTOMER OTHER THAN IN ACCORDANCE WITH THESE EXPRESS TERMS AND CONDITIONS AND ANY TERMS AND CONDITIONS WHICH MAY BE IMPLIED BY LAW.
BUYER’S STATUTORY RIGHTS. These Conditions of Sale shall not exclude, limit, restrict or modify the rights, entitlements and remedies conferred upon the buyer, or the liabilities imposed upon the seller, by any conditions or warranty implied by a commonwealth state or territory act or ordinance rendering void or prohibiting such exclusion, limitation, restriction or modification.
In these Conditions of Sale:-
a) The Company shall mean Atlas Copco Australia Pty Limited through any or all of its operating Divisions.
b) The Customer shall mean the addressee of this document or quotation.
c) The Contract shall include any terms and conditions set out in or accompanying the Company’s tender or quotation, together with the following terms and conditions and IN THE EVENT OF ANY INCONSISTENCY THE FORMER SHALL PREVAIL.
Unless otherwise stated in writing, the Company’s tender or quotation will be valid for a period of thirty days from date of issue, after which time acceptance of any order placed is subject to written confirmation. The date of acceptance shall be the date upon which notice in writing of acceptance by the Customer of a tender or quotation is received by the Company.
Unless otherwise stated, all prices are quoted at ex the Company Head Office Store and do not include freight, insurance, or taxes. For the purposes of these Conditions of Sale “taxes” means any tax (excluding income tax and capital gains tax but including a sales tax, GST, excise, levy, fee, rate or charge levied by any government or any governmental, semi-governmental or other body authorised by law), which is imposed on or in respect of or in relation to anything supplied, done or performed in connection with these Conditions of Sale and “GST” means a goods and service tax, value added tax or similar tax. The Contract price is based on the cost from the Company’s principals or sub-contractors, plus duty landing and other inward charges and costs including foreign exchange costs ruling at the date of quotation unless otherwise stated, and if variations should occur prior to delivery ex the Company store the Contract price may be amended by the Company.
Where applicable, taxes at the rates applicable for any period to which the sale and/or service of the goods are attributable will be added to any price payable by the Customer.
Availability of stock is as quoted, subject to receipt of prior orders from other customers. Every endeavour will be made to complete delivery within the period stated, but no liability can be accepted in regard thereto. Unless otherwise stated, the Company will not accept cancellation of an order due to late delivery, nor shall it be liable for consequential damages of any kind arising out of late delivery or non-delivery. Delivery may be made in one or more parcels and at different times or by separate shipments or deliveries. Each parcel shall form a separate Contract, delivered and be accepted and paid for accordingly, notwithstanding late delivery or non-delivery of any other parcel.
6. TERMS OF PAYMENT AND TERMS OF PAYMENT FOR APPROVED CREDIT ACCOUNT CUSTOMERS
Net 7 days from invoice date for equipment. Net 7 days from invoice date for Preventative Maintenance Service Plans. Net 30 days from invoice date for parts and service repairs. For non-account Customers, terms are net cash on delivery. For extended delivery contracts or for equipment engineered to Customer specification, progressive payments will be required and such terms will be stated on quotation. The Company reserves the right to charge interest of 1.5% per month on overdue accounts. The Customer agrees to indemnify and keep indemnified the Company against any costs incurred by the Company in connection with the Customer’s failure to pay any money due and owing to the Company including, without limitation, legal fees on an indemnity basis and debt collection agency fees.
7. PASSING OF TITLE AND RISK, DAMAGE IN TRANSIT AND REPOSSESSION
7.1 Goods supplied pursuant to these Conditions of Sale are at the Customer’s risk from the time of the first to occur of the following:
(a) the physical delivery of goods to the Customer or as directed by the Customer;
(b) the physical delivery by the Company to a carrier or other bailee whether or not nominated by the Customer and whether or not the agent of the Customer; OR
(c) the passing of title in the goods to the Customer.
The Customer indemnifies the Company against all loss of or damage to the equipment from whatever cause occurring once the goods become the Customer’s risk and the Company is under no obligation to give any statutory or other notice in relation to the passing of risk in the goods to the Customer.
7.2 The Company and the Customer expressly agree that the legal and equitable title to the goods supplied in each delivery only passes to the Customer when all of the goods in that delivery and all other deliveries from the Company to the Customer are paid for in full and the funds are cleared. Until then, the Customer shall be a bailee only of all goods delivered by the Company to the Customer.
7.3 So long as the Customer holds goods as bailee only in accordance with this Clause 7, the Customer must store goods supplied by the Company separately and marked in such a manner to show that the goods are clearly identifiable as the property of the Company.
7.4 The Company and the Customer agree that the Company is irrevocably authorised to enter upon any premises where goods supplied by the Company might reasonably be expected to be situated and to take possession of and remove same at the expense of the Customer, upon any of the following events occurring:
(a) the Customer failing to pay for goods supplied in full by the due date; OR
(b) prior to payment to the Company for all goods supplied to the Customer under all invoices (without limitation), the Customer becomes a bankrupt, commits any act of bankruptcy, compounds with its creditors, goes into liquidation whether voluntary or otherwise, has a voluntary administrator, receiver or receiver and manager appointed, or an application is made to a court for an order or an order is made for any of the above.
The Company will not insure any deliveries unless instructed in writing to do so.
All insurance charges so incurred will be charged to the Customer.
9. STRIKES, LOCK-OUTS & OTHER FORCES MAJEURES
The Company will not be responsible for any loss or damage or delay arising from strikes or lock-outs or from any causes beyond its control including, without being limited to: “unavailability of raw material, riots, fires, floods, breakdowns, Acts of God or governments, whether these factors affect the Company or its suppliers and whether occurring within or outside Australia”.
10. INSPECTION AND CLAIMS FOR A DEFECTIVE DELIVERY
Subject to the rights conferred on a consumer under the Trade Practices Act 1974
(as amended), where such is applicable, the Customer is responsible for immediate examination of equipment upon delivery and any deficiency or damage thereof must be reported to the Company in writing within 5 days of its receipt otherwise no claim for such damage or deficiency will be entertained.
11. RETURN OF GOODS
Subject to the rights conferred on a consumer under the Trade Practices Act 1974
(as amended), where such is applicable to the return of goods, when goods are returned to the Company for any reason whatsoever, prior arrangements for their acceptance must have been made by the Company. Unless such prior arrangements are made, the Company will not accept any responsibility or liability for goods returned, unless such obligation is implied by law. If credit is required for the goods returned, the Customer must advise the Company of the date, delivery point and document numbers relating to the original delivery and should obtain proof of delivery to the Company. The goods must be in good order and condition and resaleable as new. If goods are returned by the Customer for reasons other than defective delivery or warranty, unless other arrangements are made, the credit allowable will not exceed 80% of the net invoiced value of the goods at date of delivery. Except in the instance of defective delivery the Customer is responsible for all freight and cartage charges to the Company’s store.
12. ALTERATIONS AND ADDITIONS
If after commencement of design, production or manufacture by the Company any specification changes are requested, the cost of such changes will be borne by the Customer and the delivery time as originally advised may be adjusted by the Company.
13. QUALITY AND TECHNICAL INFORMATION
Unless otherwise specified in the Company’s quotations or order confirmation, all equipment will be of standard design and manufacture and according to the quoted standards, carefully inspected and where applicable submitted to its standard tests at the works before despatch. Specifications, drawings and particulars of weights and dimensions specified by the Company are to be regarded as approximate only. Descriptions and illustrations contained in catalogues, price lists and other written material are intended merely to present a general idea of the goods described or illustrated therein and they shall not form part of any Contract.
Unless otherwise varied within these Conditions, the Company will confirm to the Orgalime S2000 General Conditions for the Supply of Mechanical, Electrical and Electronic Products, Brussels, August 2000. Save where the Customer is a consumer for the purposes of the Trade Practices Act 1974 (as amended) or where the transaction is a consumer sale for the purposes of State Legislation applicable to the sale of goods, the only express warranty given by the Company is that set out below and all implied terms, conditions and warranties, statutory or otherwise, are hereby expressly negated.
The Warranty period shall commence from the date of delivery to the Customer.
Any variation to this period must be agreed to by the Company in writing.
THE COMPANY’S EXPRESS WARRANTY IS LIMITED TO NEW ATLAS COPCO EQUIPMENT AND IS FOR A PERIOD OF 12 MONTHS OR 2,000 HOURS OPERATION, WHICHEVER OCCURS FIRST, UNLESS OTHERWISE AGREED IN WRITING. FOR SPARE PARTS THE PERIOD OF WARRANTY IS 90 DAYS AND FOR SERVICE LABOUR 30 DAYS.
The Company’s express warranty is limited to defects resulting from faulty design, materials and workmanship only, fair wear and tear excepted but does not include freight charges, labour costs and travelling expenses incurred by the Company on warranty work. All parts claimed to be defective are to be returned at the Customer’s risk and freight paid to the Company Head Office Store or other location as authorised. The correct operation and maintenance of the equipment in accordance with the directions laid down in the operating manual supplied, is the purchaser’s responsibility and any contravention of these instructions will render the warranty null and void. In the case of equipment not of the Company’s manufacture, the Company’s express warranty is limited to the extent, if any, of the Warranty given by the manufacturer to the Company or set out in any operation, maintenance or parts manual issued with the equipment. The Company’s express warranty does not cover consequential damages resulting from failure of parts or equipment or subsequent expenses or losses. This warranty is extended by the Company only to the first user of Atlas Copco equipment purchased from the Company or from one of its authorised Distributors and may not be transferred to any other person. This restricted application of the Atlas Copco warranty shall not be taken as excluding, restricting or modifying the application of any provision of Division 2A of Part V of the Trade Practices Act 1974 (as amended). All decisions relating to warranty work made by the Company will be binding and final.
IF, DURING THE WARRANTY PERIOD, THE CUSTOMER :-
a) MAKES ANY DESIGN CHANGE TO THE EQUIPMENT, OR
b) USES REPLACEMENT PARTS OTHER THAN THOSE MANUFACTURED BY ATLAS COPCO AND SUPPLIED BY THE COMPANY OR ITS AUTHORISED DISTRIBUTORS.
THIS WARRANTY IS, ON THE HAPPENING OF ANY SUCH EVENT, IMMEDIATELY RENDERED NULL AND VOID.
15. LIMITATION OF LIABILITY IN CONSUMER TRANSACTIONS
In connection with the supply to a consumer of any goods or services within the meaning of the Trade Practices Act 1974 (as amended) other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of the Company in the event of a breach of condition or warranty implied by that Act
(other than a condition or warranty implied by Section 69) is limited, subject to Section 68A of that Act, at the option of the Company :-
a) in the case of goods, to any one or more of the following:
i) the replacement of the goods or supply of equivalent goods;
ii) the repair of the goods;
iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
iv) the payment of the cost of having the goods repaired; OR
b) in the case of services:
i) to the supplying of the services again; or
ii) to payment of the cost of having the services supplied again.
16. NO LIABILITY FOR INDIRECT OR CONSEQUENTIAL LOSS
To the extent permitted by law, the Company shall not be liable in any way to the Customer, its servants or agents for consequential, secondary, indirect, special or abnormal loss or damage (including lost profits and economic loss) connected with any supply of equipment or services by the Company to the Customer or any dealings between the Company and the Customer, and the Customer indemnifies the Company against claims, suits or actions by third parties relating to such loss or damage.
16A. DAMAGES TO BE REDUCED EQUITABLY HAVING REGARD TO CUSTOMER’S CONDUCT
In any claim, suit or action against the Company connected with any supply of equipment or services by the Company to the Customer or any dealings between the Company and the Customer, whether a claim, suit or action for breach of contract, negligence or otherwise, any damages recoverable must be reduced, to the extent that is lawful, just and equitable, having regard to relevant acts or omissions of the Customer, its servants or agents.
17. ENVIRONMENTAL DISCLAIMER
The Environmental Management at any site on which the Company’s equipment is used is the responsibility of the Customer. In this regard the Company disclaims responsibility for any infringements which occur related to breaches of Acts, Rules or Regulations pertaining to environmental pollution aspects such as noise, atmospheric, water, sewer, dangerous goods, waste disposal, etc.
18. EXCLUSION OF OTHER TERMS
The above terms and conditions shall apply to all quotations given by the Company in respect of any sale and/or service (not including quotations governed by the terms and conditions applicable to Compressor Service Contracts) to the exclusion of any other terms and conditions contained in any document submitted by the Customer to the extent that such last mentioned terms and conditions are inconsistent therewith or with any rights of the Company expressed or implied by law. No modifications thereof shall be binding upon the parties hereto or either of them unless such modifications shall be in writing duly executed by the Customer and approved by the Company.
a) This agreement is governed by the law applicable in the State of New South Wales.
b) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the State of New South Wales.
*20. MEANING OF CONDITIONS OF SALE
“Conditions of Sale” shall mean “Conditions of Sale and/or Service”.
AIR TECHNOLOGY GROUP PTY LTD A.C.N. 095 393 463
TERMS AND CONDITIONS FOR REPAIR OF GOODS
1. In these Terms and Conditions:
(a) “Goods” means any goods of the Customer which the Repairer has agreed to repair;
(b) “Manufacturer” means the maker or makers of the Goods (or any part of the Goods) sold by the Repairer;
(c) “Customer” means the person, firm or corporation for whom the repairs are undertaken;
(d) “Repairer” means Air Technology Group Pty Ltd A.C.N. 095 393 463;
(e) “Contract” means the contract for repair of goods constituted by acceptance of the Customer’s order by the Repairer;
(f) “GST” means a goods and services tax or similar value added tax.
2. These Terms and Conditions shall apply to all Contracts for repair of Goods by the Repairer and shall prevail over any conflicting conditions presented by the Customer. Unless expressly acknowledged by the Repairer in writing, any variation to these Conditions is not accepted and will be treated as inapplicable.
3. A quotation is open for acceptance by the Customer in writing within thirty (30) days after the date of the quotation or within such further time as the Repairer may agree in writing. If not accepted, it will be deemed to have been withdrawn. If accepted subject to variation, the price and delivery dates originally quoted will not necessarily remain effective.
4. Any date quoted for completion of the repair is estimated and the Repairer will not be liable for any loss or damage caused by delay in providing the service. Where the Repairer is unable to repair the Goods because of accidents to machinery, differences with workmen, strikes, lock-outs, breakdowns, labour shortages, fires, floods, priorities required or requested by any government or agencies thereof, delays in transportation, lack of transportation facilities or restrictions imposed by any law or any cause beyond the control of the Repairer, then the estimated date for completion of the repair shall be extended until the cessation of the effect of such matter or matters.
5. The Customer shall indemnify and save the Repairer from the following:
(a) all claims, demands, penalties, suits, costs, charges, losses, judgements and expenses to which the Repairer may become wholly or partially liable through any work required to be done by the Repairer or Goods or material to be supplied by the Repairer in accordance with the Customer’s specifications, orders or otherwise and involving any infringement or alleged infringement of any patent, registered design, copyright or trademark;
(b) all claims for loss, damage, death or injury sustained by the Repairer, its employees or any person whomsoever by reason of any defect in design, material, manufacture or workmanship of the Goods, whether the same be caused by the sole negligence of the Repairer or otherwise;
(c) all claims for loss, damage, death or injury arising from the existence of defects in machinery or equipment used by the Repairer, its employees, agents and contractors (in accordance with clause 14) as are not notified to the Repairer or from the operation of any equipment, machine or any part thereof or from any combination of both causes;
(d) all claims for loss, damage, death or injury occasioned to or suffered by the Customer, its employees, agents or contractors arising from the performance of any work by the Repairer, its employees, agents or contractors on the Customer’s premises or any other premises or property.
6. Orders cannot be countermanded, terminated or cancelled under any circumstances except with the written consent of the Repairer and upon terms that will indemnify the Repairer against all loss and damages.
7. The cost for repairs and services shall be the list price on completion of the repairs or as quoted on the Repairer’s quotation.
8. The Repairer may cancel the Contract or suspend or continue delivery hereunder at the Repairer’s discretion and the Repairer reserves all rights to recover any loss or damage consequent upon any such cancellation or suspension due to any of the following:
(a) in the case of death, incapacity, bankruptcy or liquidation of the Customer;
(b) suspension of payment;
(c) the making of any agreement with creditors on the part of the Customer;
(d) any non-payment punctually for any delivery tendered;
(e) any failure by the Customer to make any payment or to meet any obligation under this or any other contract or obligation to the Repairer;
(f) if the Customer rejects any delivery; or
(g) if a receiver is appointed in respect of the Customer’s business or assets.
9. Unless otherwise stated, all prices for repairs performed in the Repairer’s workshop are ex Repairer’s workshop and do not include freight, insurance or reinstallation charges. Quotations for repairs performed at the Customer’s premises will, unless otherwise stated, include the cost of travelling (including serviceman’s time and vehicle kilometres) from the Repairer’s workshop to the Customer’s premises and return, including any additional travel costs such as air fares, accommodation or meals in the case of Customer’s in remote locations. Prices quoted do not include any of the following items which (if incurred by the Repairer) must be paid by the Customer to the Repairer in addition to and at the same time as the prices quoted:
(a) packing costs;
(b) the amount of all increases in costs to the Repairer by reason of any change after the date of quotation in:
(i) Manufacturer’s prices;
(ii) labour costs;
(iii) equipment or material costs;
(iv) rates of exchange; or
(v) charges for carriage or insurance including costs of handling, landing charges and port dues;
(c) all taxes whether or not in force at the time of the quotation or order in respect of the sale or delivery of the Goods including charges for import, export or currency licences; consumer, sales, turnover or purchase taxes; duties of customs or excise and for any other charge or impost whatsoever by any government or governmental authority; and for avoidance of doubt (if any) if a GST is imposed on any supply made to the Customer under or in accordance with this Contract, the amount the Customer must pay for that supply is increased by the amount of that GST;
(d) any expenses incurred as a result of any delay in delivery resulting from the need of the Customer to obtain a licence pursuant to Clause 11 hereof; or
(e) the amount of all increases in costs to the Repairer by reason of time lost or additional travelling time incurred, caused by industrial action or any actions by the Customer whether at the Customer’s premises or otherwise.
10. If before the Repairer commences to perform its part of the Contract, the Manufacturer modifies the specification for any goods to be used in the repair of the Goods which are then manufactured in accordance with the new specification, then that specification shall be substituted for the specification of the goods that has been used in the quotation and neither the Manufacturer nor the Repairer shall be under any obligation by reason of such change of specification. If any such change of specification shall result in an increase in the Manufacturers prices, such increases shall be borne by the Customer in accordance with the provisions of Clause 9 hereof.
11. If for the lawful fulfillment of any contract, it shall be necessary for the Customer to hold or obtain any import, export, currency or other licence (“Licence”), it shall be a condition of the Contract that the Customer shall obtain the Licence. If it shall be necessary for the Repairer to hold or obtain a Licence, the Repairer shall apply for it but if it is refused, then the Contract shall be deemed discharged and neither the Customer nor the Repairer shall be under any liability in respect thereof.
12. Terms of payment are nett cash seven days on approved credit accounts, otherwise, nett cash on delivery. The Repairer reserves the right to charge interest up to 1.5% per month on amounts outstanding after the due date for payment. In the case of Contracts which extend over a period longer than a month, progressive payments will be required. The Customer shall not be entitled to withhold payment or make any deduction from the price in respect of any set off or counter-claim.
13. The Repairer may subcontract any work to any person, firm or repairer without notifying the Customer thereof and shall not thereby become liable for any delay, damage, loss, failure or any other matter, cause or thing whatsoever which shall occur or arise as a result of such subcontracting either before or at any time after delivery.
14. The Customer hereby grants to the Repairer and its employees, agents and contractors authority and permission to operate any equipment, machine or any part thereof in any manner whatsoever for the purposes of repairing the Goods and certifies that there are no defects whatsoever in such equipment, machines or any part thereof other than that of those notified to the Repairer at the time of placing the order of repair.
15. In the case of services which are supplied by the Repairer hereunder to a person or corporation (referred to in this condition as the “Consumer”) who or which is a consumer within the meaning of the Trade Practices Act 1974:
(a) except as for any other conditions or warranties issued in writing by the Repairer and except for those conditions and warranties implied by the Trade Practices Act or other sale of goods or consumer protection legislation which may not be excluded, the Consumer agrees that it has not relied on any inducement, representation or statement made by or on behalf of the Repairer in requiring the services and there are no implied conditions or warranties herein or collateral contracts in connection herewith (except such as may be in writing and signed by duly authorised representatives of the Repairer);
(b) to the extent that the services which are the subject of these provisions are services of a kind not ordinarily acquired for personal, domestic or household use or consumption (within the meaning of the Trade Practices Act) the liability of the Repairer to the Consumer for breach of any warranty or condition (other than a warranty or condition implied by Section 69 of the Trade Practices Act) or for breach of any duty of care shall in all cases be limited, at the option of the Repairer, to the supply of the services again or the payment of the cost of having the services supplied again and (without limiting the generality of the foregoing) shall not include any liability in respect of or arising out of or in connection with any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred as a result of such breach; and
16. In the case of services which are supplied by the Repairer hereunder to a person or corporation (referred to in this condition as the “Customer”) who or which is not a consumer within the meaning of the Trade Practices Act 1974:
(a) except as provided herein, the Customer agrees that it has not relied on any inducement, representation or statement made by or on behalf of the Repairer in requiring the services and that there are no implied conditions or warranties herein and no collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of the Repairer);
(b) any claim for defective Goods or workmanship must be made in writing to the Repairer within seventy-two (72) hours after delivery. The Goods in respect of which any such claim is made shall be preserved intact as delivered for a period of fourteen (14) days after such notice is given within which time the Repairer shall have the right to attend and inspect the same. Any breach of this condition shall disentitle the Customer to any consideration of such claim. The Repairer shall not be liable to make good any expenditure, damages and/or loss (including loss of profit for downtime) arising out of any use or dealing with any Goods repaired pursuant to this contract, howsoever such expenditure, damage or loss shall arise and whether from any defect in the Goods or otherwise howsoever, the Repairer’s liability shall be strictly limited to further repair of any such goods on such goods being returned to the Repairer; and
(c) the Repairer shall not be liable for any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the Customer.
(a) Goods delivered to the Repairer remain at the Customer’s risk pending redelivery to the Customer.
(b) The Repairer shall not be liable for any loss or damage to Goods in the Repairer’s possession whether caused by the negligence of any of the Repairer’s employees, agents or contractors or any other cause whatsoever.
(c) The Repairer will not insure any goods unless it agrees in writing to do so. All insurance charges so incurred will be invoiced to and paid by the Customer.
18. The Repairer reserves the right to retain the Goods until payment for providing its service or any other consequential expenses has been received by the Repairer.
19. The Contract shall be construed according to the laws of the State of Queensland and the parties accept the jurisdiction of courts exercising jurisdiction in that State.