Pneumark (WA) PTY LTD A.C.N. 074 782 791
TERMS AND CONDITIONS APPLYING TO THE SALE AND SERVICE 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:-
Contract means any contract or agreement whatsoever made by Pneumark to supply any goods or services to the customer whether resulting from an acceptance of an order by Pneumark or otherwise and 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.
Goods means all goods and chattels and all charges for work and labour done, hire charges, fees, service charges, repairs, materials of whatsoever nature associated with the supply and manufacture, construction and repair of the goods supplied to the customer and all the terms and conditions contained herein shall relate to any charge herein before mentioned imposed by the supplier to the customer.
Customer means the customer of Pneumark who buys goods or to whom Pneumark supplies any services or the addressee of this document or quotation
Supplier/The Company means Pneumark (WA) Pty Ltd.
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 ex 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.
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.
Freight charges for shopping cart purchases: For products purchased online any freight charges quoted are for road freight within Australia only. If air freight is required please contact the Company for current rates and delivery time-frame. If air tools are requested to be air bagged, no responsibility can be taken for any damage caused whilst in transit. The Company reserves the right to use its choice of carrier.
6. TERMS OF PAYMENT AND TERMS OF PAYMENT FOR APPROVED CREDIT ACCOUNT CUSTOMERS
Terms for payment for all equipment are as per conditions contained in quotation. Net 30 days from EOM in which invoice is dated, for Preventative Maintenance Service Plans, parts and service repairs. For non-account Customers, terms are net cash on delivery. 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.
14. WARRANTY FOR MARK AIR COMPRESSORS
THE COMPANY’S EXPRESS WARRANTY IS LIMITED TO NEW 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 Office 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 new equipment purchased from the Company and may not be transferred to any other person. This restricted application of the 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 SUPPLIED BY THE COMPANY.
THIS WARRANTY IS, ON THE HAPPENING OF ANY SUCH EVENT, IMMEDIATELY RENDERED NULL AND VOID.
15. WARRANTY FOR ALL OTHER PRODUCTS (EXCLUDING MARK PRODUCTS)
THE COMPANY’S WARRANTY FOR ALL OTHER NEW PRODUCTS IS LIMITED TO THE WARRANTY OFFERED BY THE MANUFACTURER.
16. 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.
17. 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.
17A. 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.
18. 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.
19. 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 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.