X-ON ELECTRONIC SERVICES TERMS AND CONDITIONS
THE TERMS AND CONDITIONS HEREON AND ON THE FACE HEREOF AND ON ACCOMPANYING PAPERS, IF ANY, SIGNED BY SELLER CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PURCHASER AND SELLER AND ANY OFFER BY SELLER IS EXPRESSLY LIMITED TO SUCH TERMS AND CONDITIONS. ADDITIONALLY, ACCEPTANCE BY SELLER OF ANY OFFER MADE BY PURCHASER IS EXPRESSLY MADE CONDITIONAL ON ASSENT TO THESE TERMS AND CONDITIONS.
1. QUOTATIONS. Quotations and prices are for the period of time specifically stated in a written quotation. If no time is stated, then quotations and prices are subject to change without notice. Orders based on quotation are not binding on seller until accepted in writing by an authorised representative of Seller's at Seller's Perth office. If a quotation for the supply of goods is given to purchaser and Purchaser makes an order but in the meantime goods of the type ordered for any reason become unavailable, the Seller is not obliged to supply such goods and the contract hereby created in respect of such goods is at an end and neither party is required to pay compensation to the other of them .
2. TAXES. In any event, quotations and prices on orders accepted are subject to change at the time of, and proportionately with, the increase of costs to Seller of the goods caused by the imposition or increase of any tax or duty upon the goods or any supplies or materials used in the goods. An amount equal to any tax or other governmental charge upon the production, sale, occupation of selling, shipment, storage or use of material, which is now, or may be hereafter , imposed by governmental authorities upon either Purchaser or Seller and which Seller is obligated to pay or collect, shall be added, to the extent attributable to the goods to be sold hereunder, to the price quoted herein and shall be paid by Purchaser.
3. CURRENCY FLUCTUATION. If goods delivered to Purchaser have been purchased by Seller abroad in foreign currency, the risk of an increase in value of that currency in relation to the Australian Dollar on the day of the payment to the seller by Purchaser is Purchaser's risk and Purchaser shall pay such amount of increase to Seller. If the sale to Purchaser has not been made in Australian Dollars, the risk of depreciation in value of the currency in which the sale has been made in relation to the Australian Dollar, on the day of Purchaser's payment to seller is Purchaser's risk and Purchaser shall pay such amount of depreciation to Seller.
4. TERMS, METHOD OF PAYMENT AND CANCELLATION. Except as otherwise provided herein, the price terms and time of payment may be changed or credit withdrawn by Seller at any time and all deliveries shall be subject to the approval of Seller's credit department. Seller reserves the right, notwithstanding any other provision hereof, before or after making any delivery to require payment in cash or to require security for payment. All past due amounts shall bear interest from and after due date at the rate of interest from time to time prescribed for the purposes of Section 3 of the Moneylenders Act, 191 2, as amended. The stipulation on the front hereof as to the time of payment of the price of the goods by the Purchaser to the Seller are deemed to be of the essence of the Agreement, and if collected through court, probate or bankruptcy proceedings, or if placed in the hands of an attorney for collection. Seller shall be entitled to recover reasonable attorney’s fees and court costs. If the financial position of Purchaser becomes, in the Seller's judgement, weakened or if Purchaser shall fail to comply with any provisions hereof or fail to make payments in accordance with the terms hereof or of any other Agreement between Purchaser and Seller, Seller may at its option, defer further shipment or, without waiving any other rights it may have, terminate this agreement and other Agreements between Purchaser and Seller.
(a)Payment for invoiced amounts is to be made in full within thirty (30) days following the date of delivery (unless quoted for a lesser period). Until payment in full is received, the property of the goods remain with the Company and if in the Purchaser's possession, will be held as Bailee and returned immediately unused and undamaged upon demand. The Purchaser will hold the Company indemnified against any claim or liability damage or injury to, or by, the goods in the meantime.
(b) Unless specifically agreed by the Company in writing before despatch of goods, no deduction is to be made from payment for retention monies to guarantee performance of a contract. Any such guarantees must be arranged between the Company and the Purchaser in a form agreed to before such despatch of goods.
(c) By credit card
5. CONTINGENCIES. (1) subject to sub-clause (2), the goods shall be delivered to the Purchaser on the date or dates specified on the front hereof. (2) The Seller is under no liability to the Purchaser for any delay in the delivery of the goods to the Purchaser caused by any of the following causes namely:- (a) strikes, lockouts, union bans, disputes between employers or disputes between employees; lb) acts of God; (c) any prohibition or embargo imposed by any Act (State or Federal), regulation, ordinance, proclamation, by-law or order; (d) any delay in the manufacture or delivery to the Seller of goods not manufactured by the Seller or materials required by the Seller for the manufacture of goods to be supplied to the Purchaser hereunder; (e) breakdown of machinery; (@ any other matter, cause or thing, beyond the control of the Seller.
6. DELIVERY. Unless otherwise agreed, shipments are FOB. Seller's shipping point. Shipments will be made on a freight collect basis and by Seller's choice of transport, unless otherwise specified prior to Shipment. Risk of loss of goods subject to the Agreement shall pass to Purchaser upon delivery to carrier at point of shipment whether or not freight is pre-paid by Seller. Any quoted delivery time is approximate and the extension of delivery time shall not be cause for termination of the Agreement unless such delay is unreasonable and due to the gross negligence or intentional act of Seller. If Seller tenders the goods for delivery to Purchaser, and so notifies Purchaser, Purchaser will immediately take delivery. Purchaser agrees to furnish adequate facilities for the receipt and unloading of goods. Seller may store goods so tendered, but not accepted, for the account and risk of the Purchaser and invoice Purchaser for the purchase price of the goods.
7. CLAIMS AND RETURNS. Claims by Purchaser must be made promptly upon delivery of shipment (which shall be deemed the invoice date) and Seller given an opportunity to investigate. All claims are deemed waived and Purchaser accepts such goods if objection is not made in writing within eight days after delivery. Written authorisation must be obtained by Purchaser from Seller before Seller will accept returned goods.
RETURN OF GOODS It is a condition of the sale of the goods that the Company is not obligated to accept in any case, the return of goods for credit. The following relating to the return of goods for credit apply to all goods returned for this purpose with the approval of the Company.
(a) Prior arrangements must be made for all goods to be returned for any reason. Authorisation must be obtained from the Company in the form of a Goods Return Authorisation (RAM) number issued by the Company. Your Request for Credit or other documentation accompanying the goods must quote this RAM number and the original invoice number and date on which the goods were supplied. Any goods not accompanied by a RAM number will not be accepted and will be returned to the Purchaser with freight charged on to the Purchaser.
(b) Packaging: Where goods were originally supplied in a special Manufacturer's carton, any return shall be made in that original carton and the goods shall be in their original and unmarked condition, complete with any instruction sheets supplied.
(c) Freight: Outward and inward freight and transport charges are the responsibility of the Purchaser. If not prepaid by the Purchaser, freight will be deducted from the amount of credit.
8. SPECIFICATIONS. Seller may substitute goods on any order accepted by Seller, provided such goods substantially conform to the descriptions herein. The goods to be sold hereunder are subject to standard manufacturing variation and tolerances. If used goods are sold, they are sold "AS IS".
9. LIMITED WARRANTY. (1) Subject to sub-clause (2), all warranties and conditions, whether express or implied by statute, usage or otherwise included without limiting the generality of the foregoing the warranties and conditions contained in Sections 12 to 15 inclusive of the Sale of Goods Act, 1895, as amended, and any implied warranty or condition as to quality or fitness for a particular purpose annexed by the usage of trade are hereby excluded from the Agreement
(2) If the Agreement is one to which the provisions of the Trade Practices Act, 1974, as amended applies, sub-clause (1) above shall not apply so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the Agreement of all or any of the provisions of Division 2 of the Trade Practices Act, 1974, as amended, the exercise of a right conferred by such a provision, any liability of the Seller for breach of a condition or warranty implied by such a provision or the application of Section 75 A of that Act.
(3) The Seller hereby warrants that the goods will be substantially conform to the written specifications (if any) delivered to the Purchaser and signed by the Seller, and that at the time of delivery the Seller will have title to the goods free and clear of any and all liens and encumbrances.
(4) With respect to goods not manufactured by Seller, Seller shall and hereby (but only to the extent permitted by Seller's contract with its supplier's) assign to Purchaser the benefit of all warranties given by Seller's supplier to Seller in respect the goods.
(5) Except as otherwise provided in this clause, the Agreement is not subject to any condition or warranty and further the Purchaser hereby acknowledges and agrees that it does not rely on any statements, representations, descriptions technical advice or service given either before or after the sale by the Seller in connection with the order, installation and use of the goods described herein and that any such statements, representations, descriptions, technical advise or service given by the Seller are given without responsibility on the part of the Seller and the Purchaser hereby waives and abandons any claim it may otherwise have been entitled to make in respect thereof.
10. REMEDIES AND DAMAGES. (1) Subject to sub-clause (2), if the Seller breaches its warranties as contained in Paragraph 9 hereof, Seller's sole and exclusive liability shall be (at Seller's option) to repair or replace or credit Purchaser’s account for any such goods which are returned by Purchaser during the applicable warranty period set forth above, provided (i) Seller is promptly notified in writing upon discovery by Purchaser that such goods failed to conform to the terms hereof, with a detailed explanation of any such alleged deficiencies, (ii) such goods are returned to Seller. FOB. Seller's designated delivery point, upon Seller's written authorisation, or stored for Seller free of charge pending such return, and (iii) Seller's examination of the goods shall disclose that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorised repair or improper testing. If such goods fail to conform to the warranty, Seller shall reimburse Purchaser for the transportation charges paid by Purchaser for such goods. If Seller elects to repair or replace such goods, Seller shall have a reasonable time to make such repairs or replace such goods .
(2) If, for the purpose of the Trade Practices Act, 1974, as amended, Purchaser is taken to have acquired goods, acquired services, or acquired goods and services as a consumer, the liability of the Seller for Breach of a condition or warranty (other than a condition or warranty implied by Section 69 of the Trade Practices Act, 1974, as amended, if that Act applies to the Agreement) is hereby limited to - (a) in the case of goods, any one or more of the following;- (i) the replacement of the goods or the 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 lb) in the case of services;-(i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again
11.INDEMNITY. Purchaser agrees to indemnify Seller for any and all liability from the transportation ,storage or use of the goods, including liability resulting from Seller's actions, whether negligent or intentional, except that Purchaser shall not be required to indemnify Seller against liability caused solely by the actions of Seller if (i) written notice of any claim based thereon is given to Seller within 15 days of such claim, (ii) the goods deemed to be the subject of such claim are returned to Seller, or reasonable opportunity for testing and inspection given, and (iii) Seller is given the opportunity to direct the defence of any action resulting therefrom
12. WAIVERS AND MODIFICATIONS. No representations or statements of any kind made by any representative of Seller, which are not stated herein, shall be binding on Seller. No addition to or modification of any provision upon the face or reverse hereof shall be binding upon Seller unless made in writing and signed by a duly authorised representative of Seller located in Perth. Purchaser shall be deemed to have accepted the terms hereof without modification if written objection is not made prior to shipment. Conflicting printed terms on a purchase order or acknowledgment used by Purchaser shall be deemed not to constitute such specific objection. Failure of either party to enforce any right hereunder shall not waive any rights in respect of other or future occurrences.
13. GOVERNING LAW. This Agreement shall be governed by the laws of Western Australia.
14. RESERVATION OF TITLE.
(a)The owner ship of the goods delivered by X-0n Electronics to the customer ("the goods") is only transferred to the customer when he has paid all sums owing to X-On Electronics, whether under this or any other contract and until such time X-On electronics has a right to call for or recover the goods (for which purpose X-On Electronics may enter the customer's premises by its servants or agents) and the customer is under an obligation to deliver up the goods to X-On Electronics.
(b)Where X-On Electronics has not been paid pursuant to this agreement or any other terms of payment in force between the parties and X-On Electronics delivers the goods to the customer, the until disposed of by the customer in accordance with this provision, the customer agrees with X-On Electronics to keep the goods in a fiduciary capacity for X-On Electronics and the customer agrees with X-On Electronics To store the goods in a manner that clearly shows the ownership of X-On electronics.
(c)Not with standing the provision on the two preceding clauses, the customer may sell the goods to a third party in the course of business and deliver them to that third party provided that:
i)where the customer is paid by the third party, and X-On Electronics has not been paid by the customer for the goods pursuant to this agreement or any other terms of payment in force between the parties, the customer holds the whole of the proceeds of sale on trust for X-On Electronics and
ii)where the customer is not paid by that third party, and X-On Electronics has not been paid by the customer for the goods pursuant to this agreement or any other terms of payment in force between the parties, the customer agrees, at the option of X-On Electronics to assign his claim against the claim to the party to X-On Electronics upon X-On Electronics giving the customer notice in writing in that effect.
d)For the purpose of giving effect to the perfecting the agreement specified in paragraph c(ii), the customer will irrevocably appoint X-On Electronics as its attorney.
e)The parties agree that these provisions apply not withstanding any agreement, whether subject to this agreement or not, between the parties under which X-On Electronics gives the customer credit.
These goods are sold subject to full consideration being made by payment to the vendor and title of the goods does not pass until such payment has been received. Payment TERMS 30 DAYS NETT.
15. LIMITATION OF LIABILITY.
(a) Save in the case of personal injury or death caused by the negligence of the Seller and other than as provided in Conditions 7 & 9, the Seller shall not be liable in contract, tort, breach of statutory duty or otherwise for any loss, injury, destruction or damage suffered by the Purchaser whatsoever or howsoever arising out of or in connection with the supply of goods or services by the Seller.
(b) If for any reason the provisions of Condition 9 are of no effect in respect of a claim against the Seller, the Seller's liability in respect of that claim shall in no event exceed the price paid for the relevant goods or services by the Purchaser.
(c) The Seller accepts no liability whether in contract, tort, breach of statutory duty or otherwise for any loss of use, profits or contracts or for any other form of consequential or indirect loss or damage.
(d) PENALTIES. X-On Electronics will not accept any penalties in any form what so ever
(a)Any representation promise statement or description by the Company or any employee, agent, dealer or other person or company is expressly excluded and the Purchaser acknowledges that he has relied solely upon his own inspection and skill and judgement and not by reason of any such representation, promise, statement or description.
(b)All photographs, weights, illustrations, dimensions and any other particulars given in or accompanying a quotation or contained in descriptive literature are approximate only and deviations therefrom shall not vitiate the contract or make the basis of any claim made against the Company.
(c)Clerical errors are subject to correction.
17 LIFE SUPPORT POLICY.
The manufacturers represented by X-On Electronic Services do not authorise or warrant any products for use in life support devices and/or systems without the express written approval of an officer of the manufacturing company. Life support devices or systems are defined as i) those which are intended for surgical implant into the body or ii) support or sustain life, and whose failure to perform, when properly used in accordance with instructions for use provided in the labelling, can be reasonably expected to result in significant injury to the user.