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Terms and Conditions
These General Conditions of Sale apply in respect of all offers to sell, quotations,
contracts and other commercial transactions for the supply of goods and/or
services by Ullrich Aluminium Pty Limited (hereinafter called "UA"). These General
conditions of sale shall be coexistent with and be read in conjunction with any
special conditions of sale except where the latter specifically vary or overide these
General Conditions of Sale or any of them. Except as otherwise expressly agreed
upon in writing between the parties, the terms and conditions contained herein
shall apply not withstanding any provisions to the contrary which may appear on
the order form or any other documentation issued by the purchaser.
1. Terms of Payment
Unless any special conditions of sale shall specifically provide to the contrary, the
following conditions shall apply:
(a) Subject to sub-paragraphs 1(b) and 1(c) the purchaser shall pay UA
immediately upon delivery of the goods or the supply of the services as
the case may be. Where delivery of the goods is affected by way of part
deliveries then UA shall be entitled to pro-rata progress payments in
respect thereof.
(b) Notwithstanding sub-paragraph 1 (a), where UA grants credit to the
purchaser, the purchaser shall pay UA within 30 days of the end of the
month in which the goods or services were purchased. The granting of
credit to the purchaser shall be at the absolute discretion of UA.
If payment is not made strictly within the beforementioned terms, interest
at the rate equivalent to the maximum overdraft rate for the time being
applied by UA's bank at its principal office in Sydney for a loan of
$100,000.00 plus1% per annum calculated on a day to day basis may be
charged (from the date of invoice until payment) upon outstanding
balances. Payment will be credited first against interest accrued.
(c) When any payment is due upon delivery, installation, commission or test,
which is delayed by the purchaser, then such payment shall be made as
though such delivery, installation, commission or test had been
completed. Any extra costs thereby incurred by UA shall be to the
purchaser's account.
2. It is contemplated by both UA and the purchaser that to satisfy the contract
in whole or part UA may manufacture the goods or may purchase them outright or
may place an order/s for their manufacture or may purchase the rights of a third
party who has contracted for the supply of goods of similar description or who
may have already placed such order or so purchased.
3. Prices
(a) Prices quoted are nett.
(b) General
Unless otherwise stated prices quoted are based on rates of labour,
materials, parts, equipment required to be purchased as component
parts, other goods, freight, transportation, insurance premiums, customs
duties and other taxes and statutory charges, shipping expenses, sorting
and stacking charges, cartage and rates of exchange, etc. current at the
date of quotation. Where relevant amounts actually and properly paid by
UA for any of these items differ from the amounts included in the quoted
price as a consequence of a variation in any of the foregoing rates
occurring from any cause the quoted price will be adjusted and the
purchaser charged accordingly and any and every contract is entered
into subject to such condition. Without limiting the generality of the term
"rates of labour" any variation in any status, regulation, award, or
determination by which rates of pay are varied or by which hours of work
are reduced for holidays, sick leave or any benefit or amenity is varied
shall be deemed to be a variation in the rate of labour.
(c) Goods of Local Manufacture
Unless otherwise stated prices quoted are:
Based on rates of labour under the Federal Metal Trades Award and the
cost of Australian material current as at the date of quotation;
Will be increased or decreased by .50 percent for each one percent
increase or decrease in the first class engineering contract which is not
completed at the date of the variation in wage rate;
Have been calculated on the basis of Australian steel at merchant rates
current at the date of quotation and UA reserves the right to increase
these prices if the use of imported steel is or becomes necessary to
maintain delivery dates;
and Will be increased or decreased by .44 percent for each one percent
increase or decrease in the cost of Australian steel at merchant rates
and is to be applied to that portion of the contract which is not completed
at the date of variation in the cost of Australian steel.
(d) The purchaser shall make payment of any increase in the prices quoted
within seven (7) days of a claim in writing for the same.
(e) All quotations are subject to withdrawal or change at any time until the
purchaser's order has been received and accepted by UA.
(f) Unless otherwise stated, all quotations will remain valid for a period of
thirty (30) calendar days from the date of the original quotation.
4. Taxes and Duties
Prices quoted by UA do not include sales tax or GST. The Purchaser will pay all
sales tax and GST, in addition to the quoted price. Such further payment shall be
made by the purchaser within seven (7) days of a claim in writing for the same.
5. Delivery
(a) Any delivery date/s and/or time/s quoted are given in good faith, but UA
will not be subject to nor incur, and the purchaser hereby expressly
releases UA from any claim, action or liability (including direct, indirect,
special, general or consequential loss or damage) arising from or
because of any delay in delivery including off loading or misdirection intransit, or arising from or because of any short or partial delivery, or nondelivery,
or any deficiency in the goods, or the absence of any part or
accessory, or the purchaser's inability to use the goods on account of any
of the foregoing.
(b) Notwithstanding and without in any way limiting or restricting the
foregoing the purchaser expressly acknowledges and agrees that the
goods may be delivered in one or more instalments.
(c) In the case of goods specially ordered by the customer from UA to the
customer's own specifications (thereafter referred to as "specially ordered
goods"), UA shall be at liberty at UA's discretion to invoice the customer
after the expiration of ninety (90) days from the date of receipt by UA's
premises of the specially ordered goods.
6. Risk The responsibility of UA for all goods ceases upon delivery and notwithstanding
that property in the goods may not at that time have passed to the purchaser, the
goods shall from the time of such delivery be at the purchaser's risk and all risks of
carriage including insurance shall be borne by the purchaser.
7. Damage
The purchaser will be responsible for immediate examination of the goods upon
delivery, and in the event of any of the goods arriving in a damaged condition,
including damage incurred in course of transit, the purchaser must report the
matter in writing to UA. Subject to any rights the purchaser may have under the
Trade Practices ACT 1974 (as amended) or other statute UA shall in no
circumstances be liable for, nor will any claim in respect thereof be made or
entertained, unless notice of the damage complained of is reported to UA in writing
within three (3) days of delivery. This clause shall be without prejudice to any other
clause/s herein which limit the liability of UA.
8. Purchaser's Responsibility
It is the purchaser's responsibility to satisfy himself that the goods are of a
description, quality and character suitable for the purpose for which they are
purchased or any other purpose and subject to any legislation to the contrary UA
shall not be liable in any way whatsoever for any loss or damage (including direct,
indirect, special, general or consequential), howsoever arising from the sale or
from the failure of the purchaser so to satisfy himself.
9. Access
It shall be the purchaser's responsibility to obtain and provide access, services,
facilities, permits, approvals or licences as may be necessary or required for UA
to perform its obligations under the Contract.
10. Force Majeure
UA shall be under no liability whatsoever in connection with or as a result of any
loss caused by the failure of UA to deliver the goods or supply the services or
otherwise to complete its obligations under the contract by reason of, whether
wholly or in part or directly or indirectly, any Act of God, flood, fire, lightning, storm,
tempest, rains, enemy hostilities, seizures, loss at sea, strikes, lockouts or other
industrial disturbances, riots, mechanical breakdown, non-delivery or shortage of
materials, inability to obtain equipment or material, laws, rules or regulations of a
governing body or any other reason whatsoever outside the control of UA.
11. Termination
UA may at its option terminate the contract by notice to the purchaser, if the
purchaser at any time dies, becomes incapacitated or bankrupt, enters into
liquidation or a scheme of arrangement or any composition with its creditors, is put
under official management, is wound up, otherwise commits any act of bankruptcy,
fails to make or suspends payment of the purchase price or otherwise defaults in
the performance of any obligation under the contract and any such termination
shall be without prejudice to the rights of UA to recover any loss consequent upon
any of the events mentioned and UA expressly reserves such rights.
12. Governing Law
The law governing the construction and performance of the contract shall be the
law of the State or Territory of Australia where the contract is made.
13. Return of Goods
(a) Subject to the following sub-paragraph of this clause UA will not accept
the return of goods unless prior written authorisation has been obtained
from UA.
(b) Returns of goods will only be accepted subject to the following conditions:
(i) If returned in their original packing;
(ii) If returned to the store from which they were purchased;
(iii)If the freight for such return/s shall have been pre-paid by the
purchaser;
(iv) If returned under warranty the purchaser to supply full details of
purchase, order number and a comprehensive report of usage and
application;
(v) Payment of a restocking fee of 15% of the purchase price of the
goods returned; and
(vi) Inspection upon receipt.
(c) The purchaser acknowledges and agrees that goods specially ordered in
will not be accepted for return.
(d) If goods which are regular stock lines of Ullrich Aluminium Pty Ltd are
returned within fourteen (14) days from the date of invoice.
(e) If goods, which are not of regular stock line, are to be returned, credit will
be strictly conditional upon UA.
14. Notices
Notice hereunder to the purchaser may be sent by ordinary post to the purchaser
at its address last known to UA and shall be deemed to have been received by the
purchaser two (2) working days following the day of posting.
15. Retention of Title
(a) Ownership in the goods shall not pass or be deemed to pass to the
purchaser until the purchaser has paid therefore and shall have
discharged all other indebtedness to UA on any account whatsoever or
until such time as the Purchaser sells the goods to his customer bona
fide at market value;
(b) Where the goods have been delivered but UA has not been paid then
until such payment is received the Purchaser agrees to keep the goods
as a fiduciary for UA and to store or otherwise hold the goods in a
manner that clearly shows ownership of UA;
(c) The receipt by UA of any cheque, bill of exchange or promissory note
shall not be deemed to be payment in any respect until the same has
been honoured or cleared and until that occurs UA rights, powers and
remedies against the Purchaser and/or the goods remain unaffected
altogether;
(d) If any of the goods are incorporated in or used as material or components
for other goods before payment to UA, the property in the whole of such
goods shall be deemed to remain with UA until payment is made or the
other goods have been sold to the Purchasers' customers bona fide and
at market value and all of UA's rights hereunder in the goods shall
extend to those other goods;
(e) If payment for any goods is not made within the terms specified in whole
or in part then UA may (without prejudice to any of its other rights)
recover and resell the goods or any part thereof;
(f) The Purchaser hereby irrevocably grants to UA, its agents and servants
an unrestricted right and licence, without notice, to enter premises
occupied by the Purchaser to identify and remove any of the goods the
property of UA in terms of this clause as aforesaid without in any way
being liable to the Purchaser or any person claiming through the
Purchaser. UA shall have the right to sell or dispose of any of such
goods so removed or otherwise in its sole discretion and shall not be
responsible for any loss occasioned thereby.
16. Limitation of Liability
Nothing herein contained shall be read or applied so as to purport to exclude,
restrict or modify or have the effect of excluding, restricting or modifying the
application in relation to the supply of any goods and/or services pursuant to the
contract of all or any of the provisions of Part V of the bade practices Act 1974 (as
amended) or any relevant State Act or Territorial Ordinance (hereunder
collectively referred to as "the Acts") which by law cannot be excluded, restricted
or modified, provided that to the extent that any of the Acts permits UA to limit its
liability for the breach of any condition or warranty applying under or by virtue of
any of the Acts then UA's liability for any such breach shall be limited, to the
extent permitted by such Acts and subject thereto, to:
(a) In the case of goods, such one or more of the following as UA in its
absolute discretion determines;
(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
(b) In the case of services, such one or more of the following as UA in its
absolute discretion determines;
(i) the supplying of the service; or
(ii) the payment of the cost of having the service supplied again.
All other conditions and warranties which might otherwise be implied herein by
law and which may be excluded are hereby expressly excluded in respect of the
goods and/or services supplied under the contract or any agreement
supplemental thereto.
17. Warranty
Unless any special condition of sale shall specifically provide to the contrary the
following shall apply:
(a) New Goods: Subject to the exceptions expressed in their General
Conditions of Sale UA warrants that where the goods are new goods, the
goods shall be free from defects in material and workmanship under
conditions of normal use and maintenance for a period of six (6) months
from delivery or (if applicable) where the goods at the time of delivery
have attached thereto a service meter for one thousand (1,000) hours of
use as registered in the service meter whichever event shall first occur;
Provided always that the warranty shall not apply in any of the following
circumstances or cases:
(i) Functional difficulties with the goods attributed to the fact that the
purchaser has made or caused or allowed to be made any change,
modification or alteration to the goods or has installed or caused or
allowed to be installed any attachment to the goods manufactured
by any manufacturer other than the Original Equipment
Manufacturer.
(ii) Functional difficulties in the goods attributed to operation or
maintenance of the goods in disregard of any "Operation and
Maintenance Manual" delivered to the purchaser at or about the
time of delivery of the goods or any other instructions concerning the
goods, which may from time to time be issued by the original
Equipment Manufacturer and/or UA.
(iii) Functional difficulties with the goods attributable to improper
handling or unsatisfactory and/or improper maintenance or repair of
the goods or the use of parts not manufactured by the Original
Equipment Manufacturer,
(iv) Functional difficulties in the goods which are not verified by the
Original Equipment Manufacturer as being attributable to any defect
in materials or workmanship.
(v) Maintenance items (such as but not limited to) goods or parts
thereof which become worn out and/or damaged under conditions of
normal use and maintenance.
(b) Component Overhaul:
Subject to the exceptions expressed in their
General Conditions of Sale UA warrants that when it overhauls a
component, that overhauled component shall be free from defects in
material and workmanship under conditions of normal use and
maintenance for the period which is the first to occur of:
(i) three (3) calendar months; or
(ii) five hundred (500) hours of use of the component, from the date of
delivery of the overhauled component back to the purchaser.
Provided that the warranty shall not apply in respect of the following circumstances
or cases:
(i) any accessories or proprietary fittings whatsoever; or
(ii) any defective component or part or parts of such component which,
in the opinion of UA was injured by wear and tear, the use of any
lubricant or fuel not approved by UA, the lack of proper
maintenance, prolonged or improper storage or any form of improper
operation or use of the component by the purchaser, or any
alteration whatsoever made to the component or any part or parts of
the component by the purchaser.
(c)
(i) Limit of Liability: It is expressly agreed that UA shall in no event be
liable for any damage whatsoever whether direct, indirect, special,
general or consequential and howsoever arising (including damage
suffered as a result of the negligence of UA or of its servants or agents)
for breach of either Warranty contained in sub-paragraph (a) or (b) of this
clause (hereinafter in this clause jointly and severally called "the
Warranty") and that the sole and exclusive remedy of the purchaser for
breach of the Warranty shall be to;
(a) in the case of new goods to require UA to repair or replace
(at the absolute discretion of UA) any part or parts of the
goods not complying with the Warranty or to pay for the
cost of replacing or repairing any part or parts of the goods
not complying with the Warranty; or
(b) in the case of component overhaul to require UA to repair
the overhauled component or to pay for the cost of
repairing the overhauled component.
(ii) UA shall have no obligation or liability under the Warranty neither to
furnish normal maintenance or operating service for the goods nor to
provide lubricants, fuels, tune-ups or similar inspections or
adjustments.
(iii) The Warranty applies only within the Commonwealth of Australia and
to:
(a) in the case of new goods, the original purchaser to whom
the goods were first sold and excludes second hand and
used goods; or
(b) in the case of component overhaul, the original purchaser
for whom the overhaul of the component was carried out
and excludes new goods.
(d) Condition of Warranty: It is a condition of the Warranty contained in this
clause that in respect of any claim under the Warranty the purchaser
shall:
(i) File a warranty claim on the form prescribed from time to time by UA
not later than seven (7) days from the discovery of any defect;
(ii) give full particulars in the claim of the alleged defect and the reasons
for alleging that such defect is due to defective materials or
workmanship; and
(iii) forthwith deliver at the purchaser's expense the alleged defective
part or parts of the goods or the component or part or parts of such
component as the case may be, to the premises of UA where the
goods were purchased or the overhaul was undertaken, as the case
may be, in proper condition to prevent additional damage or
corrosion.
UA shall be under no liability under the Warranty if the foregoing conditions are not
met.
18. Suspension of Supply
Payment for any goods sold and/or services supplied shall become immediately
due upon default by the purchaser in payment of any other goods sold and/or
services supplied by UA to the purchaser and UA shall be entitled to suspend the
supply of further goods and/or services to the purchaser.
19. Reservations
(a) The purchaser shall not copy or have copied any product or part of any
drawing specification or other technical data in regard thereto which may
be supplied or provided arising out of a quotation or the contract.
(b) Unless otherwise stated all specification, drawings and particulars of
weight, dimensions and performance characteristics submitted are
approximate only and descriptions and illustrations contained in
catalogues, price lists and other written material are intended merely to
present a general idea of the goods described therein and none of the
foregoing shall form part of the contract.
20. Packing
When UA considers specialised packing is required to protect fragile goods or
components, then the purchaser will pay for the cost of such packing. Subject to
clause 13 hereof the purchaser need not return such packing materials. |
