a) “Company” means and includes EXFIRE Pty Ltd ABN: 76 142 947 788 and any of its related bodies corporate;
b) “Deliver” includes supply as the context requires;
c) “Goods” means all products and services sold or supplied by the Company; and
d) “Person” includes a firm or corporation; and
e) “Purchaser” means any person (either alone or jointly with another party) contracting or offering to contract with the Company.
2) Sales and Lead Time
Sales are subject to availability.
3) Price and Currency
All prices are in Australian dollars and may change without notice.
Quotations are valid for 30 days from the date of quotation unless some other period is specified in writing by the Company. Quotations are subject to withdrawal or variation by the Company at any time. Any quotation made by the Company is not an offer to sell and no order based on a quotation will bind the Company until the order is accepted by the Company. 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. Any modifications agreed to verbally will only be effective after confirmation by the Company in writing.
5) Offer and Acceptance
Upon acceptance of an offer by the Company, a binding agreement shall arise between the Purchaser and the Company and these terms and conditions will be incorporated into such agreement. If any terms and conditions are contained in any order, offer, acceptance or invoice of the Purchaser then it is specifically agreed between the Purchaser and the Company that such terms and conditions are null and void and shall not apply. All representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied in this agreement are expressly excluded to the fullest extent permitted by law.
The Company shall use its best endeavors to dispatch the Goods by the agreed date (if any) but any date quoted for Delivery is an estimate only and the Company shall not be liable to the Purchaser for any loss or damage however arising for failure to Deliver on or before the quoted date. Late Delivery or failure to Deliver does not entitle the Purchaser to cancel any order or part order.
a) The Company reserves the right to Deliver by instalment(s). If Delivery is made by instalment(s), the Purchaser shall pay to the Company all money owing for each instalment(s)dispatched and the Purchaser shall not be entitled to cancel or otherwise avoid accepting and paying for any instalment(s) dispatched or terminate or cancel any instalment(s) yet to be Delivered.
b) The Company reserves the right to suspend the supply of any order in whole or in part or discontinue the supply of Goods without incurring any liability (eg. product recall)
c) Every endeavour will be made to Deliver the quantity ordered, however the Purchaser shall accept and pay for, at the agreed price per unit, the Goods actually Delivered, notwithstanding that the number or amount of Goods Delivered may be greater or less than the number or amount ordered.
d) The rights conferred on the Company by this clause are without prejudice to any other right sand remedies of the Company.
7) Cancellation & Returns
a) Any order may only be cancelled by mutual agreement and in the event of cancellation of an order, the Purchaser undertakes to reimburse and indemnify the Company for any costs, expenses or charges incurred by the Company in relation to the order.
b) A purchaser may, within 7 days of the Delivery Date, return the Goods to the Company for a credit. The Purchaser is responsible for the payment of any costs associated with the return(eg. freight). A 20% handling fee will be deducted by the Company.
8) Description and Specification
Whilst every effort is made to ensure the accuracy of the descriptions, illustrations and material contained in any catalogue, price list, brochure, leaflet, specification sheets, technical data sheets, material safety data sheets or other descriptive matter or advice provided by or on behalf of the Company, the Purchaser acknowledges and accepts that this descriptive matter or advice describes the general nature of the Goods only and does not form a part of any order or agreement or amount to a representation or warranty. The Company reserves the right to modify the Goods without notice.
9) Intellectual Property Rights
All copyright or other intellectual property rights (eg product formulations) in the Goods remain the sole property of the Company. The supply of Goods implies a license to the Purchaser to use the Goods but for no other purpose. The Purchaser undertakes not to utilise, copy, reproduce or disclose or permit others to utilise, copy, reproduce or disclose any intellectual property without the prior written consent of the Company.
10) Limitation of Liability
To the extent permitted by law, the Company shall not be liable for any loss (including consequential loss), damage, deterioration, deficiency, defect or other fault or harm arising from, caused by or concerning the supply of Goods by or on behalf of the Company. In particular, the Company shall not be liable for:
a) defects or damage caused in whole or in part by misuse, abuse, neglect, error, improper application or installation, repair, alteration or accident;
b) transport, application or installation, labour or other costs;
c) Goods not manufactured by the Company (although the Company will endeavour to pass onto the Purchaser the benefit of any claim made by the Company and accepted by the manufacturer of such Goods under any warranty given by that manufacturer); and
d) technical advice or assistance given or tendered by the Company to the Purchaser whether or not in connection with the supply of the Goods.
e) The Company’s liability shall in all circumstances be limited to:
i) the replacement of the Goods; or
ii) payment of the cost of replacing the Goods or acquiring equivalent Goods; as the Company may select in its absolute discretion.
11) No Warranty
The Company gives no warranty as to the fitness of the Goods for any particular purpose or use and shall have no liability in that regard.
All risk in the Goods Delivered by the Company to the Purchaser passes to the Purchaser as soon as the Goods have been Delivered to the Purchaser, their carrier or agent.
Although risk in the Goods passes on Delivery to the Purchaser or the Purchaser’s agent or carrier, title in the goods shall not pass to the Purchaser until payment has been received by the Company in full in cleared funds of the purchase price for the Goods and for all other Goods sold by the Company to the Purchaser for which payment is due.
Where other terms have not been expressly agreed upon, payment is due prior to Delivery of the Goods to the Purchaser or the Purchaser’s carrier or agent.
15) Goods and Services Tax (GST)
Unless otherwise stated, all prices quoted for Goods are exclusive of GST and the Company will charge GST on all invoiced items in accordance with the applicable rate at the time the invoice is prepared.
16) Recovery of Costs
All costs and expenses incurred by the Company to remedy any breach by the Purchaser of these terms and conditions shall be recoverable from the Purchaser in addition and without prejudice to any other rights, powers and remedies held by the Company.
The Purchaser acknowledges as a condition of the purchase of the Goods from the Company that:
a) The terms and conditions contained in this agreement are reasonable and necessary to protect the legitimate interests of the Company;
b) It has read and understands the conditions in this agreement; and
c) No undue influence, pressure or unfair tactics were exerted in the formation of the agreement.
If at any time the Company does not enforce any of these terms and conditions of sale or grants the Purchaser time or other indulgence, the Company shall not be construed as having waived that term or condition or its right to enforce that term or condition.
All clauses, words, phrases, sentences and paragraphs of this agreement are separate and independent, each being severable from the others. If any of them or any parts are declared void, invalid or otherwise unenforceable by any court of competent jurisdiction then they shall be deemed to be severed to the extent that they are void, invalid or unenforceable but the remainder of this agreement shall remain in full force and effect.
These terms and conditions will be governed by and construed according to the law of New South Wales, Australia and the parties agree to submit to the jurisdiction of the Courts and Tribunals of that State.