Unless otherwise agreed to in writing by the Seller, any goods or materials supplied or to be supplied by the Seller are supplied only on these terms. Previous dealings between the Seller and the Purchaser shall not vary or replace these terms or be deemed in any circumstances whatsoever so to do. The giving by the Purchaser of any delivery instructions for the goods or any part thereof or the acceptance by the Purchaser of delivery of the goods or any part thereof or any conduct by the Purchaser in confirmation of the transaction after receipt by the Purchaser of the Seller's acceptance of the Purchaser's order shall constitute unqualified acceptance by the Purchaser of these conditions unless otherwise agreed to specifically in writing by the Seller and notwithstanding any terms appearing in any order or other documentation provided by the Purchaser or any inconsistency with these conditions.
2) THE TRADE PRACTICES ACT (1974)
a) Any rights, remedies, liabilities, conditions, warranties, standards or specifications which apply to or in respect of this Contract under or by virtue of the Trade Practices Act, 1974 or any other enactment of Australia or of any State or Territory thereof affecting this Contract are deemed to apply to this Contract notwithstanding any inconsistency with these Conditions.
b) Subject to paragraph 2(a) no conditions or warranties expressed or implied by law and no representations or statements are binding on the Seller unless set out in these Terms of Sale.
Subject to Condition 2(a):
a) the Seller warrants that goods manufactured by it shall be free from faulty workmanship and material (except as regards defects specifically drawn to the Purchaser's attention before the Contract is made or if the Purchaser examines the goods before the Contract is made, except as regards defects which that examination ought to reveal).
b) No complaints or claims in respect of goods supplied by the Seller will beconsidered unless made in writing within fourteen (14) days of delivery.
c) The liability (if any) of the Seller in respect of all claims under this Contractor in respect of defective or faulty goods shall be limited to the value of the goods or part thereof which are faulty or defective or not in accordance with this Contract and such liability may be fully discharged at the option of the Seller by the replacement or repair of the goods or part thereof (as the case may be) and subject to this the Seller is not and shall not be liable for any consequential loss direct or indirect.
4) ADVICE AND INFORMATION
Subject to Condition 2(a) any advice of information provided by the Seller in relation to goods sold or manufactured by it or their use under any specific conditions, the life and wear of the goods or their immunity from the possibility of attack by corrosion, pitting, erosion, chemical, electrolytic action or otherwise is given in good faith and is believed by the Seller to be appropriate and reliable but is given without any liability as to the suitability of the goods for any purpose.
5) PURCHASER'S ACCEPTANCE
Unless agreed upon specifically in writing by the Seller when quotations are made or orders accepted the Seller's goods shall not be subject to acceptance or rejection by inspection at the Purchaser's premises or nominated place of delivery.
6) DELIVERY DATES
The prices and delivery dates given in quotations are for the quantity of goods specified therein. Any deviation when ordering may render the quotation subject to revision.
Unless otherwise agreed in writing goods are not insured in transit. If the Purchaser requires cover to be effected on his behalf full details must be supplied with the other and all resulting charges will be to the Purchaser's account. The Seller shall be under no obligation to give the Purchaser a notice referred to in Section 35(3) of the Sale of Goods Act 1923 (N.S.W.) or any equivalent provision in any other State or Territory of the Commonwealth of Australia.
Unless otherwise stated in writing any quotations given by the Seller are subject to written acceptance reaching the Seller within fourteen (14) working days immediately following the date of quotation.
All prices quoted are based on prices of material and labour rates ruling at date of quotation. Any variation may be at the Seller's option to Purchaser's account.
No cancellations, amendments or variations of this Contract shall bind the Seller except with the written agreement of the Seller and the Purchaser shall be liable for and shall indemnify the Seller against any loss or damages of whatsoever nature suffered by the Seller resulting from the Purchaser's cancellation of goods ordered.
This Contract shall be governed in all respects by the law of the state in which the goods covered by this quotation are manufactured or at the option of the Seller by the law of the State in which the quotation is given by the Seller and any disputes hereunder shall be referred to arbitration in that State in accordance with the Arbitration Act or any similar statutory enactment then in force for the time being.
12) PRICES AND PAYMENT
a) Unless otherwise stated in writing all quoted prices are for delivery at the place specified in the quotation and are payable without discount or allowance.
b) The Purchaser (at the option of the Seller) shall in addition to the price charged by the Seller to the Purchaser for the goods pay to the Seller:
i) all packing costs (if any);
ii) all taxes duties and charges whatsoever imposed by any government or other authority and payable in respect of or by reason of the sale or delivery of the goods or any part thereof whether or not the same were payable at the date the order from the Purchaser is accepted by the Seller and including without prejudice to the generality of the foregoing charges for import, export, currency, license, sales, turnover or purchase taxes and duties of customs and excise;
iii) any increase in the cost to the Seller arising from delivery of the goods to a place at a time or in a manner other than that specified in the quotation (if any) or after the date the order from the Purchaser is accepted by the Seller as the case may be resulting from any request made by the Purchaser or any other reason whatsoever beyond the reasonable control of the Seller;
c) Unless otherwise agreed to in writing by the Seller, the purchase price shall be paid by the Purchaser to the Seller in full within 30 days of the date of the invoice and the Purchaser shall not be entitled to withhold payment or make any deduction from the price in respect of any set-off or counter-claim.
a) Unless otherwise stated in writing the time tor delivery shall run from the date the Seller notifies the Purchaser that the goods are ready for delivery and the Purchaser shall take delivery of the goods within seven (7) days of notification from the Seller that the goods are ready for delivery.
b) If the Purchaser fails to take delivery in accordance with these Terms of Sale the Purchaser shall pay to the Seller all storage and handling costs arising from the delay.
c) The Seller shall be under no liability whatsoever to the Purchaser for loss, injury, damage of any kind whatsoever arising out of delay in or failure to make delivery of the goods or any part thereof including (without prejudice to the generality of the foregoing) consequential loss of any kind.
d) If the Seller is prevented (directly or indirectly) from making delivery of the goods or any part thereof by reason of acts of God, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, or military or usurped power, martial law or confiscation by order of any government or public authority, nuclear fission or fusion or radioactivity, strikes, lockouts, trade disputes, fire, breakdowns, suspension of production, accident's, interruption of transport, government action or any other cause whatsoever (whether or not of a like nature to those specified above) outside its reasonable control the Seller shall be under no liability whatsoever to the Purchaser and shall be entitled as its option either to cancel this Contract or to extend the time of its performance and the Purchaser shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery or dispatch.
14) TITLE AND RISK
a) the goods are at the Purchaser's risk from the occurrence of first in time of any of the following events:
i) the passing of property to the Purchaser;
ii) the physical delivery by the Seller of the goods to the Purchaser or to such person or premises as the Purchaser directs;
iii) the physical delivery by the Seller to any carrier or any bailee for delivery to the Purchaser;
b) Notwithstanding any delivery of the goods or any part thereof the goods shall remain the sole and absolute property of the Seller as legal and equitable owner until such time as the Purchaser shall have paid the Seller the purchase price in full together with the full price of any other goods the subject of any other contract with the Seller.
c) The Purchaser acknowledges that he is in possession of goods delivered by the Seller solely as bailee for the Seller until such time as the full price thereof is paid to the Seller together with the full price of any other goods the subject of any other Contract with the Seller.
d) Until such time as the Purchaser becomes the owner of the goods:
i) He will store them on his premises separately from his own goods or those of any other person and in a manner which makes them readily identifiable as the goods of the Seller.
ii) If the goods are used in the manufacture of other goods, the property in those other goods shall be transferred to the Seller and they shall be stored so that they are clearly identified as the property of the Seller provided that the Purchaser may sell and deliver any such goods to a third party in the ordinary course of business on the condition that should the Seller so require the Purchaser will assign to the Seller his rights in respect of the sale price therefore.
If the Purchaser fails to pay the purchase price within the period specified in condition 14(c) or otherwise fails to carry out the terms of or repudiates this or any other Contract with the Seller or if the Purchaser dies, stops payments or calls a meeting of its creditors or becomes insolvent or subject to the bankruptcy laws or being a company calls a meeting for the purpose of or to go into liquidation or has a winding up petition presented against it or has a receiver appointed the Seller may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights under this Contract suspend or cancel this Contract or require payment in cash before or on delivery or tender of goods or documents notwithstanding terms of payment previously specified or may repossess and take over the goods and dispose of same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale. The Seller may exercise any such rights as to whole or part of such goods. The Seller may for the purposes of recovery of its goods as aforesaid enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
16) EXCHANGE RATES
a) In the case of goods supplied to Seller from outside Australia, prices to the Purchaser therefore are quoted in Australian dollars at the rates of exchange ruling at the date of quotation or at the date of the order by the Seller (in the case where there is no quotation).
b) In the event of variations in rates of exchange of the Australian dollar in comparison with any other currencies subsequent to the relevant date mentioned in Condition 16(a) hereof, prices of goods supplied, may at the Seller's option, be adjusted to reflect such variations where those variations affect the cost to the Seller of the goods to be supplied to the Purchaser.
In these conditions:
"The Seller" means E&L May Pty Ltd ATF EMS Family Trust trading as Elite Medical Supplies.
"The Buyer" means the party purchasing the goods.
Words importing the masculine gender shall include the feminine gender or the neuter gender as the case may require.